April 2, 2010 - Leslie Sammis, a criminal defense attorney at the Sammis Law Firm, is a attorney on the Legal Committee for the National Organization for the Reform of Marijuana Laws (NORML).
All Charges Dismissed after Attorneys Win Motion to Suppress Hearing - Client Avoids Two Felony Charges and Two Misdemeanor Charges
Result: On March 31, 2010, the Honorable Denise A. Pomponio, Circuit Court Judge for Tampa, Hillsborough County, FL, heard from two law enforcement officers during a hearing on our motion to suppress and then granted our clients motion to suppress evidence, which included 16 marijuana plants, Soma (a prescription medication which is a controlled substance), marijuana seeds, drug paraphernalia, ballasts, light system, and other marijuana hydroponic equipment.
Because the motion suppressed all evidence in the case, on March 31, 2010, Judge Pomponio then granted our motion to dismiss all charges including Count I for manufacture of cannabis, Count II for possession of cannabis (less than 20 grams), Count III for possession of a controlled substance, and Count IV for possession of drug paraphernalia.
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Arguments we made leading to the dismissal of all charges:
1. A patrol officer with the Hillsborough County Sheriff’s Office with one month of experience as a “Narcotics Investigator with the Special Investigations Division” was in charge of an undercover operation to investigate citizens suspected of growing marijuana in their homes.
2. Less than one month before this investigation the patrol officer was rotated onto the "Indoor Marijuana Grow House Task Force." Patrol officers were put on the task for so that they could gain experience in finding and investigating indoor grow house operations. The task force started on February 23, 2009, and ended around December 12, 2009.
3. In furtherance of this sting operation, the Hillsborough County patrol deputy, would set up surveillance of the citizens at a local “hydroponic” and gardening store called “Worm’s Way” located at 4412 North 56th Street, Tampa, FL 33610-7120 during the week of August 9th, 2009. Many officers with the task force have described finding individuals that are growing marijuana in their home as easy as "fishing out of a barrel." The task force also targeted other hydroponic stores in Tampa and Hillsborough County, including Grace's Hydro-Organic Garden Center, Florida Hydroponics, and Causeway Hydroponics Supply, Hydroponics of Tampa, and the Garden Source Tampa - Hydroponics.
4. The Hillsborough County patrol officers would spy on customers as they parked their car and entered the store. The officers would write down the customer’s tag number and then find out the name of the individual that owned the vehicle. The officers would also find out whether the owner of the vehicle also owned a home. The officers would then, in some instances, obtain electricity records from Tampa Electric Company - TECO (without a warrant). For some reason, the officers would not use any surveillance equipment.
5. It was the standard procedure of the HSCO patrol officer, who had one month of experience as a “Narcotics Investigator with the Special Investigations Division” to investigate the leads he uncovered concerning our client, a man with no criminal record who lived in Hillsborough County, FL. The HSCO patrol officer's work consisted of running the tag to find out where the owner of the vehicle lived, and contacting TECO to determine whether the electric bills at that residence appeared to be higher than normal. In the search warrant, the patrol officer said that our client's utility bills for the past four months were twice as high as the surrounding homes with the same square footage, although at the motion hearing we argued that the patrol officer had no way to articulate how he made that calculation and he has since destroyed any notes that would have shown his calculations.
6. Based on those observations, the patrol officer on the Indoor Marijuana Grow House Task Force obtained permission from the Hillsborough County Sheriff’s Office to go to the home of our client for the purpose of conducted a “Knock and Talk” without a warrant with the intention of gaining access to search the residence on August 17, 2009.
7. Two armed deputies, including the patrol officer then made their way to the residence, knocked on the door, and gained access into our client's home. At the motion hearing, the patrol officer testified that after he knocked on the door he asked permission to enter and our client "verbally agreed." A detective also testified but said that he was the one that asked for permission and that our client only indicated that they could enter by his body language when he moved to the side so that the officers could enter the home. Needless to say, the facts gathered from these two officers during the depositions were valuable in showing all of the inconsistencies in their testimony.
8. We argued that the entry into the residence was without free and voluntary consent under the circumstances. In fact, according to the detective that testified no verbal consent was given. We argued that the officers simply used their apparent authority, badges and guns to make their way inside the residence after our client opened the door and after a brief interrogation.
9. After entering the residence the officers allegedly saw in plain view a small amount of marijuana in a clear plastic container sitting on a table inside the residence.
10. After seizing the container and realizing that it contained a small amount of marijuana, our motion alleges that the patrol officer on the task force began a warrantless search of the entire property, including looking on our client's computer, in his bedroom, and through his papers and other property. According to our motion, the search lasted for several hours before the officers made any attempt to secure a warrant. In fact, the officers did testify that they did not have any consent after entering the property to perform any search in the residence or surrounding property.
11. We argued that the lack of consent did not stop the officers with the Hillsborough County Sheriff's Office from searching the entire house and an apartment next to the main house that had an entrance that could only be accessed from the outside of the house. In fact, the patrol officer looked in windows, and went up an outside staircase to look into the upstairs windows before discovering “the upstairs windows were covered with a plastic tarp and a set of double French doors were sealed with foam…heard a distinct humming noise coming from the windows and door of the attached secondary structure…indicative of ballasts, air conditioning units, lighting systems, and/or fans.”
12. Our motion alleged that based on this illegal warrantless search, the patrol officer on Hillsborough County's Indoor Marijuana Grow House Task Force, used this illegally obtained information to secure a search warrant without advising the Court of the illegality and questionable tactics used.
13. Our motion to suppress alleged that after obtaining the search warrant the officers then “officially” began another search and seized items from the residence and the connected two story apartment next to the main house.
14. In the motion to suppress, we ask the Court to suppress any statements attributed to our client by the deputies and officers, including but not limited, any statements regarding knowledge or ownership of the marijuana, cannabis plants, grow house equipment, paraphernalia, any controlled substance, and misdemeanor amounts of marijuana allegedly seized from the residence and surrounding property.
Our motion to suppress made the following legal arguments based on the evidence:
1. The deputies in this matter illegally entered and searched the residence and property without a warrant and without consent in violation of the Fourth Amendment of the United States Constitution. In addition, the open-view and/or exigent circumstances exception do not apply to the facts of this case.
2. Any alleged consent to search subsequent to the prior illegal search is tainted and not free and voluntary.
2.a. Evidence gained during an illegal search of a home before the officer's obtained a search warrant could not be relied upon to support the federal warrant. See, e.g., Murray v. United States, 487 U.S. 533, 536 (1988) (officers who illegally entered warehouse and observed bags of marijuana could not rely on their knowledge of the marijuana in support of application for warrant). Neither can an officer put false, misleading, or unsupported facts in a affidavit to obtain a warrant. See Franks v. Delaware, 438 U.S. 154 (1978) (intentionally false statement or omission regarding material fact requires suppression of evidence).
3. The initial entry to the home was illegal because any alleged “consent” to enter his home obtained from the defendant, to the extent that voluntary consent is claimed by the prosecutor for the State Attorney's Office in Tampa, Hillsborough County, or by the deputies was involuntary and coerced.
4. Furthermore, any inspection of the backyard or adjacent property was illegal because it is well established under Florida law that an uninvited and warrantless search of a side-yard area or a back-yard area violates the Fourth Amendment and subjects any evidence gathered from such a search to exclusion. State v. Morsman, 394 So.2d 409 (Fla. 1981) (seizure of marijuana plants in defendant’s backyard was illegal when plants were not visible to the public and police officer had no right to be in backyard); Maggard v. State, 736 So.2d 763 (Fla. 2d DCA 1999); Glass v. State, 736 So.2d 788 (Fla. 2d DCA 1999) (marijuana plants suppressed where officers had no right to enter backyard even when they saw people in the backyard).
5. Generally, people have an increased reasonable expectation of privacy in the backyard of their homes. Moorsman, supra.
6. In this case, the evidence is clear that the defendant had a reasonable expectation of privacy in his home, backyard, and the two story structure attached to his home. It is also clear that the deputies violated this expectation of privacy and the defendant’s Fourth Amendment rights by entering the back yard, and going up a outside staircase, without a warrant and without consent.
7. In addition, the deputies were not justified to conduct a warrantless search of the adjacent property based on the open-view exception. State v. Rickard, 420 So.2d 303 (Fla. 1982); Oliver v. State, 989 So.2d 16 (Fla. 2d DCA 2008).
8. In an “open view” situation, the police may not seize contraband observed from an adjacent lot without a warrant where the defendant has exhibited an actual expectation of privacy and there are no exigent circumstances. State v. Rickard, 420 So.2d 303, 307 (Fla. 1982).
9. An open-view situation is treated similarly to the “plain-view” exception except that “some exigent circumstances [are] required to justify warrantless entry into the protected area in an ‘open-view’ situation.” Oliver v. State, 989 So.2d 16, 17 (Fla. 2d DCA 2008).
10. Initially, the evidence above establishes that there is no way that the deputy could have made any observations that were consistent with a grow house operation through anything he saw in an “open view.”
11. Having established that the entry and subsequent search of the interior of the main house and the exterior upstairs portion of the upstairs was illegal, any subsequent searches, seizures and statements allegedly obtained through “consent” are tainted and therefore not free and voluntary.
12. “When the initial police activity is illegal, the State must establish by ‘clear and convincing’ evidence that there has been an unequivocal break in the chain of illegality sufficient to dissipate the taint of prior illegal police action and thus render consent freely and voluntarily given.” Maggard, supra, citing, Jordan v. State, 707 So.2d 338 (Fla. 2d DCA 1998); see also United States v. Quintana, 594 F.Supp.2d 1291 (M.D.Fla. 2009).
13. In this case, there is no evidence of an unequivocal break in the chain of illegality sufficient to dissipate the taint of the prior illegal entry and search. If anything, there is simply evidence of more illegality by the police officers through threats and coercion. As such, any alleged consent to search the resident, and any evidence seized from or statements obtained, are tainted and subject to exclusion.
14. On its own, the alleged consent in this case was not voluntarily and freely given. “Consent may not be coerced, ‘by explicit or implicit means, by implied threat or covert force.’” United States v. Quintana, 594 F.Supp.2d 1291, 1303 (M.D.Fla. 2009), quoting Schneckloth v. Bustamonte, 412 U.S. 218, 228 (1973).
15. In the instant case, our client did not sign any form that authorized the alleged “consent” to search the home or property.
16. It is undisputed by the officers that our client immediately requested the right to remain silent and not answer any questions without his attorney being present. As such, any statements obtained from our client must be suppressed because they were taken in violation of his Miranda warnings.
After the hearing on our motion, the Assistant State Attorney did not make any legal argument in support of the legality of the search. The Court found that based on the facts presented the allegations in the search warrant were false, based on illegally obtained evidence, or unsupported to the extend that the entire warrant and all evidence gained from it had to be suppressed.
After granting our motion to suppress, the prosecutor acknowledged that the motion was dispositive (which means that the prosecutor had no evidence to support any of the charges). Therefore, the trial court also granted our motion to dismiss.
Information Upon Request Zone
Manufacture of Cultivation of Cannabis under Florida Statute Section F.S. 893.13(1)(a) is a third-degree felony punishable by five years in Florida State Prison. If more than 25 plants are found in the home, the prosecutor could charge the offense as a second-degree felony punishable by 15 years in Florida State Prison.
In many of these cases, it come down to fighting to suppress the evidence because of any mistake made by any law enforcement officer. Your criminal defense attorney for the cultivation of marijuana case must take the deposition of each officer involved in the initial investigation that lead to the search warrant, investigate any steps taken thereafter to execute the search warrant, and examine every aspect of the arrest and interrogation of the person suspected of manufacture or cultivation of cannabis in Florida.
After the depositions, your Tampa criminal defense lawyer for the cultivation of marijuana case must file and litigate the motion to suppress the evidence because of an illegal search or seizure, and any motion to dismiss for insufficient evidence.
If you have been arrested for a serious drug offense such as manufacture of cannabis, possession of marijuana, possession with intent to sell cannabis, possession of drug paraphernalia, possession of a grow house operation, or trafficking in a controlled substance in Tampa, Hillsborough County, FL, call an experienced attorney at the Sammis Law Firm to discuss your case today. Call 813-250-0500 today or visit our main website to learn more information about felony marijuana charges under Florida law at www.SammisLawFirm.com.
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