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Tampa Criminal Defense Attorneys discuss recent case results in a possession of marijuana case decided in Tampa, Hillsborough County, FL.
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All Charges DismissedResult: On July 27, 2009, the Honorable John Conrad, Judge for County Court, Hillsborough County, Tampa, granted our motion to suppress all evidence from an illegal search in a case that started off with an arrest for Cultivation of Cannabis. The Court then granted a Motion to Dismiss the case for lack of evidence. Our client walked out of the courtroom completely exonerated of any criminal offense.
Our client was arrested on March 23, 2009, for one count of "Manufacture of Cannabis," a third degree felony, and two misdemeanor charges for Possession of Cannabis Less than 20 Grams and Possession of Drug Paraphernalia.
After the arrest for the felony offense of Manufacture or Cultivation of Marijuana, the State Attorney's Office in Tampa, Hillsborough County, takes 21 days to make a filing decision. The filing decision typically results in the prosecutor filing a charging document, called an "information," for all of the same charges for which the defendant was arrested. In many cases, however, the prosecutor may decide not to file any charges, or to file greatly reduced charges. In a few cases, the prosecutor may even file more serious charges. One of the benefits of hiring an attorney immediately after the arrest, is that your criminal defense attorney can contact the prosecutor to convince them not to file any felony charges, or not to file any charges at all.
The Tampa criminal defense attorneys at the Sammis Law Firm used those first 21 days to gather evidence, including pictures of the house and adjoining property to show the prosecutor that the officer's version of events was not true. Noting the concerns about the legality of the search, the Tampa prosecutor decided not to file the felony charge of Cultivation of Cannabis, a third degree felony. Instead, the prosecutor filed the charge of possession of marijuana, in violation of Fla. Stat. § 893.13(6)(b) and possession of drug paraphernalia in violation of Fla. Stat. § 893.117, both first degree misdemeanors.
After the misdemeanor charges were filed, the State has only 90 days to bring the case to trial unless the defendant waives her rights to a speedy trial. We filed a motion to suppress all of the evidence taken from inside our client's residence and and/or her back porch, including marijuana plants, drug paraphernalia, marijuana seeds, as well as any statements attributed to her.
The motion to suppress alleged that the arresting and investigating officers violated our client's rights under the Fourth Amendment of the United States Constitution by conducting a search of her home without a warrant and/or probable cause and all such evidence and statements were obtained as a result of an illegal search and seizure. Moreover, we alleged that her arrest was without a lawful warrant, probable cause or other lawful authority in violation of the rights guaranteed by the Fourth, Fifth, Sixth, and Fourteenth Amendments to the United States Constitution.Finally, we sought to suppress any statements obtained from our client, as well as her identity, were obtained in violation of her rights pursuant to the Fourth, Fifth, Sixth, and Fourteenth Amendments to the United States Constitution, Article I, sections 9, 16, and 21 of the Florida Constitution.
In our motion to suppress, we alleged the following facts:
- Several law enforcement officers with the Hillsborough County Sheriff's Office went to our client's home after receiving a tip that pots containing marijuana plants were growing on the back porch of the property.
- The property has a front gate and no trespassing signs clearly posted in more than one place.
- The house is extremely private and is surrounded by woods and vegetation. To get to the front of the home, visitors must traverse a long ramp from the parking area to the front door.
- The sides of the home are fraught with thick plants and dense woods making it nearly impassible from the front yard to the rear of the home.
- It is impossible to see from the front door or windows of the house through to the back porch to identify plants as marijuana.
- Furthermore, the officers could not see the plants on the back porch were marijuana until they actually entered the backyard.
- On the day of the arrest, March 23, 2009, our client was away from her home running errands with her daughter when she received a call from someone identifying themselves as a Sheriff from Hillsborough County, FL, that said he was at her home due to a "tip" regarding a burglary and that she should return home.
- We alleged that the deputy on the telephone lied to our client as there was no reason to believe that a burglary had occurred at the residence.
- Our client called a neighbor and asked him to go to her home while she was in route. When the neighbor arrived, he observed five deputies on the scene, four male deputies and one female deputy.The female deputy was in the back yard area of the home.
- When our client and her daughter arrived home, the deputies immediately detained our client and her daughter and began interrogating them without providing Miranda warnings.
- The deputies told our client and her daughter that they had already gone into the backyard area of the home and allegedly found several marijuana plants.
- Our client and her daughter asked the officers about their illegal entry on to her property and their illegal entry and search of the back yard.Initially, the officers stated that they could see marijuana plants on the back porch from the front of the home by looking through the windows near the front door.
- After being told repeatedly by our client that they could not possibly see through to the backyard from the front door, the officers then said that they went around the back of the house because they heard the television on inside the house and thought someone was ignoring their knocking on the door. At one point the officers mentioned the word "burglary" without any explanation of why they believed a burglary had occurred at the residence.
- Several of the Hillsborough County Sheriff’s Officers asked our client if she consented to the officers searching inside the home. Our client repeatedly denied that request.
- The Hillsborough County Sheriff’s Officers then repeatedly advised our client that if she did not consent to their searching her home that they could investigate arresting her daughter since she also lived at the property.
- The Hillsborough County Sheriff's Officers also told our client that if she did not consent to their searching her home that they might need to call animal control to remove the many animals that our client had on the property as pets, including horses, dogs, cats, goats, donkeys and a llama.
- The Hillsborough County Sheriff's Officers also told her that if she did not consent to their searching her home and they had to wait outside and get a warrant then things would not “go easily” for our client and her daughter.
- The officers then told her that if she did not consent to their searching her home that “things would change.”
- After these continued threats and out of concern for her animals and her daughter, our client finally relented and "consented" to the deputies request to enter her home.The deputies proceeded to search the entire home and allegedly found drug paraphernalia, marijuana seeds, a couple of old marijuana roaches, and rolling papers.
- Only after searching the entire house did the officers request that our client sign a consent form. They told her that if she did not sign the form they might arrest her and her daughter.
- The officers again said that if she and her daughter were arrested, they would have to call animal control to remove all of the animals from her property.
- After these continued threats, and out of concern for her animals and her daughter, our client relented and signed the consent form.
- After the consent to search form was signed, a deputy with the Hillsborough County Sheriff’s Office, asked our client if she knew what her Miranda rights were.He then told the female deputy to take the daughter outside and advise her of her Miranda rights.
- The officers then advised our client that if she didn't admit that the small amount of marijuana found in the home were hers, then they would have to decide what to do about her daughter.
- The officers allegedly obtained statements from our client.
Part of our memorandum in support of our motion to suppress the evidence from the Hillsborough County home is provided below:
The deputies in this matter illegally entered and searched the back yard 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.
Any alleged consent to search subsequent to the prior illegal search is tainted and not free and voluntary.
Any alleged consent obtained by the deputies was involuntary and coerced.
It is well established 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 (Florida 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 (Florida 2d DCA 1999);
Glass v. State, 736 So.2d 788 (Florida 2d DCA 1999) (marijuana plants suppressed where officers had no right to enter backyard even when they saw people in the backyard).
Generally, people have an increased reasonable expectation of privacy in the backyard of their homes.
Moorsman,
supra.In this case, the evidence is clear that the defendant had a reasonable expectation of privacy in her home and backyard that was surrounded by dense woods, plants and vegetation.It is also clear that the deputies violated this expectation of privacy and her Fourth Amendment rights by entering the back yard, through a heavily wooded side yard, without a warrant and without consent.
In addition, the deputies were not justified to conduct a warrantless search of the backyard based on the open-view exception.
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 (Florida 1982).
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 (Florida 2d DCA 2008).
Initially, the evidence above establishes that there is no way that the Deputy with the Hillsborough County Sheriff's Office could have observed a marijuana plant from the front of the house by looking through any window towards the back porch.As such, neither the open-view or plain-view exceptions would apply to this case.
For the sake of argument, even assuming the deputy with the Hillsborough County Sheriff's Office could look through the front of the house and see a plant on the back porch, there is no way that it would be immediately apparent to him that the plant was a marijuana plant.Therefore, if anything the instant case could arguably be an open-view situation and not a plain-view situation.
Oliver v. State, 989 So.2d 16, 17 (Florida 2d DCA 2008).
As stated, in an open-view situation, a police officer must obtain a warrant to seize potential contraband absent emergency or exigent circumstances.
In this case, there were no such emergency or exigent circumstances.That is, nobody was home when the police arrived. No officers or other persons were in any sort of danger.There was no danger of any evidence being destroyed.The deputies had ample time to get a warrant before entering and illegally seizing the marijuana plants in from the backyard.
Moreover, it is clear from the pictures of the area around her house, a dense, wooded area accessible to the front only through a long, ramped walkway, and heavily dense and wooded around the back and sides, that the defendant had an actual expectation of privacy in her back yard area.
There is no objective evidence whatsoever of any exigent circumstances that would have justified the deputies warrantless entry into the backyard.
In addition, to the extent that the officers try to argue that because they heard the television in the house they thought somebody was home and avoiding them thus justifying their entry into the backyard, such an argument is foreclosed by established case law.
Waldo v. State, 975 So.2d 542 (Florida 1
st DCA 2008) (after nobody answered knocks on front door, officers illegally went to back door and side door to knock.All evidence found in back and side yard was suppressed);
Lollie v. State, 2009 WL 1532965 (Florida 1
st DCA, June 3, 2009) (perceived circumstances which led officers to believe someone might be inside home does not justify a warrantless entry into a defendant’s backyard).
Having established that the entry and subsequent search and seizure in the back yard was illegal, any subsequent searches, seizures and statements allegedly obtained through “consent” are tainted and therefore not free and voluntary.
“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 (Florida 2d DCA 1998);
see also United States v. Quintana, 594 F.Supp.2d 1291 (M.D. Florida 2009).
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 from the defendant, are tainted and subject to exclusion.
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. Florida 2009),
quoting Schneckloth v. Bustamonte, 412 U.S. 218, 228 (1973).
In the instant case, the defendant alleged “consent” to search her home and in subsequently signing a consent form after the search reeks of illegal coercion and threats by the Hillsborough County Sheriff’s deputies.
The deputies repeatedly threatened to arrest the defendant's daughter if she did not consent to the search of her home and sign a consent form.The deputies also repeatedly threatened to have animal control called to remove her pets and other animals (with no justification to do so).
The deputies used information gained from the prior illegal entry and search, i.e. the marijuana plants, to further coerce the defendant into consenting to a subsequent search.
Conclusion: The Honorable John Conrad, Judge for County Court, Hillsborough County, Tampa, granted our motion to suppress all evidence from an illegal search in a case on July 27, 2009. Judge Conrad then granted a Motion to Dismiss the case for lack of evidence.
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If you have been arrested for Cultivation of Marijuana in Tampa, Hillsborough County, Pinellas County, Polk County, Pasco County, or one of the surrounding counties, contact a criminal defense attorney to learn more about whether filing and litigating a motion to suppress may be warranted in your case. Call 813-250-0500 to discuss your case today.
