4th Amendment/ Article 1 Section 12

Investagatory Stops

"A police officer may conduct an investigatory stop on less than probable cause if the police officer has a reasonable, articulable suspicion that a person has committed, is committing, or is about to commit a crime. Popple v. State, 626 So.2d 185, 186 (Fla.1993) (citing § 901.151 Fla. Sta. (1991)); Tamer v. State, 463 So.2d 1236, 1239. "In order not to violate a citizen's Fourth Amendment rights, an investigatory stop requires a well-founded, articulable suspicion of criminal activity. Mere suspicion is not enough to support a stop." Popple, 626 So.2d at 186. A founded suspicion is a belief which has some factual foundation in the circumstances observed by the officer, when those circumstances are interpreted in the light of the officer's knowledge. Tamer, 463 So.2d at 1239. A police officer may conduct an investigatory stop on less than probable cause if the police officer has a reasonable, articulable suspicion that a person has committed, is committing, or is about to commit a crime. Popple v. State, 626 So.2d 185, 186 (Fla.1993) (citing § 901.151 Fla. Sta. (1991)); Tamer v. State, 463 So.2d 1236, 1239. "In order not to violate a citizen's Fourth Amendment rights, an investigatory stop requires a well-founded, articulable suspicion of criminal activity. Mere suspicion is not enough to support a stop." Popple, 626 So.2d at 186. A founded suspicion is a belief which has some factual foundation in the circumstances observed by the officer, when those circumstances are interpreted in the light of the officer's knowledge. Tamer, 463 So.2d at 1239.

Insufficient reason for stop Sousa v. State, 192 So. 3d 481 (Fla. 2d DCA 2016)

BOLO vague, vehicle was merely near the scene, no indication that suspects had fled by vehicle. Court finds only a mere suspicion. Conviction reversed.

Franks Issue Baldino v. State, 225 So. 3d 257 (Fla. 4th DCA 2017)

Child pornography case. Search warrant that resulted in seizure of computer attacked,. Court agreed with trial court that 1) no intentional or reckless conduct on the part of he detective who prepared the affidavit and 2) even without omissions and misstatements, PC present for search.

Reasonable suspicion in traffic stops

Courts have been inclined to find a lack of reasonable suspicion where the circumstances were a piling on of inferences derived from otherwise legal conduct. K.G.M. v. State, 816 So. 2d 748, 753 (Fla. 4th DCA 2002).

State v. Stahl, 206 So. 3d 124

IV. Analysis A. The privilege The Fifth Amendment to the United States Constitution provides in pertinent part that "[n]o person ... shall be compelled in any criminal case to be a witness against himself[.]" Amend. V, U.S. Const. This privilege against self-incrimination "protects a person only against being incriminated by his own compelled testimonial communications." Doe v. United States, 487 U.S. 201, 207, 108 S.Ct. 2341, 101 L.Ed.2d 184 (1988) (quoting Fisher v. United States, 425 U.S. 391, 409, 96 S.Ct. 1569, 48 L.Ed.2d 39 (1976)); see also Kessler v. State, 991 So.2d 1015, 1021 (Fla. 4th DCA 2008) ("The Fifth Amendment privilege protects an accused from being compelled to testify against himself, or otherwise provide the state with evidence of a testimonial or communicative nature." (citing Schmerber v. California, 384 U.S. 757, 763, 86 S.Ct. 1826, 16 L.Ed.2d 908 (1966))). "The word `witness' in the constitutional text limits the relevant category of compelled incriminating communications to those that are `testimonial' in character." United States v. Hubbell, 530 U.S. 27, 34, 120 S.Ct. 2037, 147 L.Ed.2d 24 (2000); see also Heddon v. State, 786 So.2d 1262, 1263 (Fla. 2d DCA 2001) (stating that the privilege against self-incrimination "only precludes forcing an accused to produce incriminating testimonial communications"). "[I]n order to be testimonial, an accused's communication must itself, explicitly or implicitly, relate a factual assertion or disclose information. Only then is a person compelled to be a `witness' against himself." Doe, 487 U.S. at 210, 108 S.Ct. 2341 (footnote omitted). In order for Stahl to have properly invoked his Fifth Amendment privilege he needed to establish three things: (1) compulsion, (2) a testimonial communication or act, and (3) incrimination. In re Grand Jury Subpoena Duces Tecum Dated Mar. 25, 2011, 670 F.3d at 1341 (In re Grand Jury). "Once an individual has invoked his privilege against self-incrimination, it becomes the duty of the trial court to determine whether there is a reasonable basis for the assertion of the privilege and whether the privilege has been invoked in good faith." St. George v. State, 564 So.2d 132*132 152, 155 (Fla. 5th DCA 1990). Because the State does not contend otherwise, for purposes of this opinion, we presume that Stahl invoked the privilege.[6] Although not expressly stated, it is apparent from the record and from the State's filings with this court that the State concedes that producing the password to the phone would be incriminatory. See Commonwealth v. Gelfgatt, 468 Mass. 512, 11 N.E.3d 605, 612 (2014) ("[T]he entry of the encryption key or password presumably would be incriminating because `it would furnish the Government with a link in the chain of evidence leading to [the defendant's] indictment.'" (second alteration in original) (quoting Doe, 487 U.S. at 207 n.5, 108 S.Ct. 2341)). It also appears that the State has conceded that producing the password would be compelled within the meaning of the privilege.[7] Thus, the crux of the State's argument below, and its argument as to the trial court's departure from the essential requirements of the law, is whether the State sought protected testimony from Stahl. B. Act of Production The Fifth Amendment privilege against self-incrimination has been held to apply not only to verbal and written communications but also to the production of documents, usually in response to a subpoena or summons, because the act of production itself could communicate incriminatory statements. See Fisher, 425 U.S. at 410, 96 S.Ct. 1569. The courts that have addressed the Fifth Amendment implications for providing decryption keys and passcodes have largely applied the act-of-production doctrine and the foregone conclusion exception. See, e.g., Sec. & Exch. Comm'n v. Huang, No. 15-269, 2015 WL 5611644, *1 (E.D. Penn. Sept. 23, 2015); United States v. Fricosu, 841 F.Supp.2d 1232, 1235 (D. Col. 2012); In re Grand Jury Subpoena to Boucher (In re Boucher), 2:06-MJ-91, 2009 WL 424718, *2-3 (D. Vt. Feb. 19, 2009); Gelfgatt, 11 N.E.3d at 612; Commonwealth v. Baust, 89 Va. Cir. 267 (Va. Cir. Ct. 2014). But see United States v. Kirschner, 823 F.Supp.2d 665, 669 (E.D. Mich. 2010) (concluding that providing the 133*133 password was testimony protected by the privilege against self-incrimination). Invoking the privilege still requires the accused to establish compulsion, a testimonial communication, and incrimination. And as we have said, in this case compulsion and incrimination are not at issue, leaving only the testimonial element. Testimonial elements of production include (1) the existence of the documents, (2) the accused's possession or control of the documents, and (3) the authenticity of the documents. Hubbell, 530 U.S. at 36, 120 S.Ct. 2037.[8] It bears repeating that the information sought by the State, that which it would require Stahl to provide, is the passcode to Stahl's iPhone — the iPhone that the State had a warrant to search based on probable cause that the phone was used in Stahl's commission of the crime of video voyeurism. The State has not asked Stahl to produce the photographs or videos on the phone.[9] But the fact that the State sought production of the passcode itself and not production of the contents of Stahl's phone does not resolve the issue before us because the State does not contend the court departed from the requirement of law by applying the act-of-production doctrine. "The difficult question whether a compelled communication is testimonial for purposes of applying the Fifth Amendment often depends on the facts and circumstances of the particular case." Doe, 487 U.S. at 214-15, 108 S.Ct. 2341. Here, the trial court rested its determination that producing the passcode would be testimonial exclusively on the concept that production would require "the use of the contents" of Stahl's mind. The phrase "the contents of the accused's mind" has often been repeated in cases discussing the privilege. See, e.g., Hubbell, 530 U.S. at 43, 120 S.Ct. 2037; Doe, 487 U.S. at 211, 108 S.Ct. 2341; In re Grand Jury, 670 F.3d at 1345; Kirschner, 823 F.Supp.2d at 669. And although the trial court correctly quoted the Eleventh Circuit's statement in In re Grand Jury, that "[t]he touchstone of whether an act of production is testimonial is whether the government compels the individual to use `the contents of his own mind' to explicitly or implicitly communicate some statement of fact," 670 F.3d at 1345, the trial court did not consider the law as stated in Hubbell and Doe — that the contents of the accused's mind must be "extensive[ly] use[d]" in creating the response, Hubbell, 530 U.S. at 43, 120 S.Ct. 2037, or must "relat[e] him to the offense," 134*134 Doe, 487 U.S. at 213., 108 S.Ct. 2341[10] That is, "it is not enough that the compelled communication is sought for its content. The content itself must have testimonial significance." Doe, 487 U.S. at 211 n.10, 108 S.Ct. 2341 (emphasis added) (first citing Fisher, 425 U.S. at 408, 96 S.Ct. 1569; then citing Gilbert v. California, 388 U.S. 263, 267, 87 S.Ct. 1951, 18 L.Ed.2d 1178 (1967); and then citing United States v. Wade, 388 U.S. 218, 222, 87 S.Ct. 1926, 18 L.Ed.2d 1149 (1967)). In this case, the communication was sought only for its content and the content has no other value or significance.[11] By providing the passcode, Stahl would not be acknowledging that the phone contains evidence of video voyeurism. See Doe, 487 U.S. at 215, 108 S.Ct. 2341. Moreover, although the passcode would allow the State access to the phone, and therefore to a source of potential evidence, the State has a warrant to search the phone — the source of evidence had already been uncovered. See id. Providing the passcode does not "betray any knowledge [Stahl] may have about the circumstances of the offenses" for which he is charged. See id. at 219, 108 S.Ct. 2341 (Stevens, J., dissenting). It does not implicitly "relate a factual assertion or disclose information." Doe, 487 U.S. at 210, 215, 108 S.Ct. 2341. Thus, "compelling a suspect to make a nonfactual statement that facilitates the production of evidence" for which the State has otherwise obtained a warrant based upon evidence independent of the accused's statements linking the accused to the crime does not offend the privilege. See id. at 213 n.11, 108 S.Ct. 2341. "If a compelled statement is `not testimonial and for that reason not protected by the privilege, it cannot become so because it will lead to incriminating evidence.'" Id. at 208-09 n.6, 108 S.Ct. 2341 (quoting In re Grand Jury Subpoena, 826 F.2d 1166, 1172 n.2 (2d Cir. 1987) (Newman, J., concurring)). The trial court's reliance solely on the passcode being the contents of Stahl's mind was a departure because the standard requires something more. That an accused may be "forced to surrender a key to a strongbox containing incriminating documents," but he cannot "be compelled to reveal the combination to his wall safe," Doe, 487 U.S. at 219, 108 S.Ct. 2341 (Stevens, J., dissenting), is another often repeated quote. See, e.g., Hubbell, 530 U.S. at 43, 120 S.Ct. 2037; Doe, 487 U.S. at 210 n.9, 108 S.Ct. 2341; In re Grand Jury, 670 F.3d at 1345; Kirschner, 823 F.Supp.2d at 669. Despite the many cases referencing the quote, we have found none that provide details of "surrender[ing] 135*135 a key." We question whether identifying the key which will open the strong-box — such that the key is surrendered — is, in fact, distinct from telling an officer the combination. More importantly, we question the continuing viability of any distinction as technology advances. See Fisher, 425 U.S. at 407, 96 S.Ct. 1569 ("Several of Boyd[ v. United States, 116 U.S. 616, 6 S.Ct. 524, 29 L.Ed. 746 (1886)]'s express or implicit declarations have not stood the test of time."). In that respect, we are not inclined to believe that the Fifth Amendment should provide greater protection to individuals who passcode protect their iPhones with letter and number combinations than to individuals who use their fingerprint as the passcode. Compelling an individual to place his finger on the iPhone would not be a protected act; it would be an exhibition of a physical characteristic, the forced production of physical evidence, not unlike being compelled to provide a blood sample or provide a handwriting exemplar. See Hubbell, 530 U.S. at 35, 120 S.Ct. 2037 (and cases cited therein); see also Baust, 89 Va. Cir. 267 at *4.[12] C. Foregone Conclusion However, even the testimonial communication implicit in the act of production does not rise "to the level of testimony within the protection of the Fifth Amendment" where the State has established, through independent means, the existence, possession, and authenticity of the documents. Fisher, 425 U.S. at 411, 96 S.Ct. 1569. That is, by implicitly admitting the existence of the evidence requested and that it is in the accused's possession the accused "adds little or nothing to the sum total of the Government's information"; the information provided is a foregone conclusion. Id. "In essence, under the `foregone conclusion' exception to the Fifth Amendment privilege, the act of production does not compel a defendant to be a witness against himself." Gelfgatt, 11 N.E.3d at 615. In order for the foregone conclusion doctrine to apply, the State must show with reasonable particularity that, at the time it sought the act of production, it already knew the evidence sought existed, the evidence was in the possession of the accused, and the evidence was authentic. In re Grand Jury, 670 F.3d at 1344.[13] Although the State need not have "perfect knowledge" of the requested evidence, it "must know, and not merely infer," that 136*136 the evidence exists, is under the control of defendant, and is authentic. United States v. Greenfield, 831 F.3d 106, 116 (2d Cir. 2016). Where the foregone conclusion exception applies, "[t]he question is not of testimony but of surrender." Fisher, 425 U.S. at 411, 96 S.Ct. 1569 (quoting In re Harris, 221 U.S. 274, 279, 31 S.Ct. 557, 55 L.Ed. 732 (1911)). To know whether providing the passcode implies testimony that is a foregone conclusion, the relevant question is whether the State has established that it knows with reasonable particularity that the passcode exists, is within the accused's possession or control, and is authentic. See In re Boucher, 2009 WL 424718 at *3 ("The Government thus knows of the existence and location of the Z drive and its files." (emphasis added)). But see Baust, 89 Va. Cir. 267 ("Contrary to the Commonwealth's assertion, the password is not a foregone conclusion because it is not known outside of Defendant's mind." (emphasis added)). The question is not the State's knowledge of the contents of the phone; the State has not requested the contents of the phone or the photos or videos on Stahl's phone. Cf. In re Grand Jury, 670 F.3d at 1346-47 (concluding that "[n]othing in the record before us reveals that the Government knows whether any files exist and are located on the hard drives" where the Government requested production of the contents of the hard drives).[14] But see Huang, 2015 WL 5611644 at *3 (stating that, where the SEC sought passcodes and not the contents of the smartphones, "the SEC proffers no evidence rising to a `reasonable particularity' any of the documents it alleges reside in the passcode protected phones." (emphasis added)). The State established that the phone could not be searched without entry of a passcode. A passcode therefore must exist. It also established, with reasonable particularity based upon cellphone carrier records and Stahl's identification of the phone and the corresponding phone number, that the phone was Stahl's and therefore the passcode would be in Stahl's possession. That leaves only authenticity. And as has been seen, the act of production and foregone conclusion doctrines cannot be seamlessly applied to passcodes and decryption keys. If the doctrines are to continue to be applied to passcodes, decryption keys, and the like, we must recognize that the technology is self-authenticating — no other means of authentication may exist. Cf. Greenfield, 831 F.3d at 118 (recognizing "[i]mplicit authentication" of documents (alteration in original) (quoting United States v. Fox, 721 F.2d 32, 38 (2d Cir. 1983))). If the phone or computer is accessible once the passcode or key has been entered, the passcode or key is authentic. V. Conclusion The trial court departed from the requirements of the law by considering only part of the standard used to determine whether a communication is testimonial and by burdening the State with proving the existence of incriminating content on Stahl's phone when that was not at issue. It further departed by requiring the State to establish existence beyond the reasonable particularity standard. Unquestionably, the State established, with 137*137 reasonable particularity, its knowledge of the existence of the passcode, Stahl's control or possession of the passcode, and the self-authenticating nature of the passcode.[15] See In re Boucher, 2009 WL 424718 at *3. This is a case of surrender and not testimony. Petition granted; order quashed. SALARIO, J., Concurs. KELLY, J., Concurs in result only. [1] The State contended that sending the phone to Apple would create chain of custody concerns because it did not "know who would have it at the manufacturer, what they would have to do to get into it" and that timeliness was an issue because the manufacturer indicated that the phone would be logged in to the system, only worked on after receipt of a court order, and then shipped back. At the time the State filed its motion, it was known that devices running certain versions of Apple's operating system would permanently lock and potentially erase all of the device's content after ten failed attempts to enter the passcode, but it was unknown that "[f]or all devices running iOS 8 and later versions, Apple will not perform iOS data extractions in response to government search warrants because the files to be extracted are protected by an encryption key that is tied to the user's passcode, which Apple does not possess." Privacy, Apple Inc., https:www.apple.com/ privacy/government-information-requests/ (last visited Oct. 20, 2016). Unlike In re Order Requiring Apple, Inc. to Assist in the Execution of a Search Warrant Issued by this Court, 149 F.Supp.3d 341 (E.D. N.Y. 2016), the State is apparently unable to determine what iOS is installed on Stahl's phone. [2] Nothing in our record establishes whether Stahl invoked his Fifth Amendment privilege against self-incrimination or the State preemptively raised the issue. See amend. V, U.S. Const. [3] Because a warrant has been issued allowing the State to search Stahl's phone, the order denying the motion to compel is more akin to an order suppressing evidence than to an order denying discovery. Cf. State v. Isaac, 696 So.2d 813, 813 (Fla. 2d DCA 1997); State v. Foley, 193 So.3d 24, 26 (Fla. 3d DCA 2016). [4] The trial court's focus on probable cause was misplaced. The State had a search warrant for the contents of the phone. Stahl has not challenged the validity or execution of that warrant. The only issue before the court was whether it could compel Stahl to provide the passcode. [5] The State made no mention of whether it had attempted to compel Stahl to unlock the phone using his fingerprint. At least one court has held that compelling a witness to use his fingerprint to unlock or access his cellphone is not testimonial. See Commonwealth v. Baust, 89 Va. Cir. 267, 2014 WL 10355635 (Va. Cir. Ct. 2014). Nor has the State attempted to compel Stahl to produce the contents of the phone without divulging the passcode. Cf. In re Grand Jury Subpoena Duces Tecum Dated Mar. 25, 2011, 670 F.3d 1335 (11th Cir. 2012). [6] Although the transcript of the proceedings below makes it clear that the court did not require Stahl to establish the three components of the privilege but rather assumed the privilege applied and placed the burden on the State to rebut or overcome the claim, we recognize that the somewhat unusual procedural posture in which the issue arose likely caused this burden shift. Cf. State v. Mitrani, 19 So.3d 1065, 1068 (Fla. 5th DCA 2009) ("If a witness rightfully invokes the privilege against self-incrimination, the State may overcome the claim of privilege ...."); In re Grand Jury, 670 F.3d at 1341 ("An individual must show three things to fall within the ambit of the Fifth Amendment ...."). Despite this apparent error, the State does not raise the burden shift as a basis to grant certiorari relief. [7] We do not believe it is at all clear that producing the password is compelled within the meaning of the privilege because it is a "settled proposition that a person may be required to produce specific documents even though they contain incriminating assertions of fact or belief because the creation of those documents was not `compelled'" but was voluntary. Hubbell, 530 U.S. at 35-36, 120 S.Ct. 2037 (emphasis added); see Fisher, 425 U.S. at 409-10, 96 S.Ct. 1569. That is, Stahl may be required to produce the password even though it may be testimonial and incriminate him because the creation of the password was not compelled. Stahl is not being asked to cull through existing documents and assemble a set of documents which he believes are responsive to the subpoena — something newly created and compelled to be created pursuant to subpoena. See In re Grand Jury Subpoena Duces Tecum Dated Oct. 29, 1992, 1 F.3d 87, 93 (2d Cir. 1993) ("Self-incrimination analysis now focuses on whether the creation of the thing demanded was compelled and, if not, whether the act of producing it would constitute compelled testimonial communication."). [8] We note that the contents of Stahl's phone are neither at issue nor privileged. See United States v. Doe, 465 U.S. 605, 612, 104 S.Ct. 1237, 79 L.Ed.2d 552 (1984); In re Boucher, 2009 WL 424718 at *2. [9] Neither the State nor Stahl addresses the State's request as anything but an act of production. This is likely because relevant — but not determinative — case law addresses the privilege in the context of producing decrypted documents or files, clearly acts of production. See, e.g, Fricosu, 841 F.Supp.2d at 1235 ("[T]he government seeks a writ ... requiring Ms. Fricosu to produce the unencrypted contents of the computer."); In re Boucher, 2009 WL 424718 at *1 ("[T]he Government stated that it does not in fact seek the password for the encrypted hard drive, but requires Boucher to produce the contents of his encrypted hard drive in an unencrypted format by opening the drive before the grand jury."); Gelfgatt, 11 N.E.3d at 612 ("The Commonwealth... is seeking to compel the defendant to decrypt `all' of the `digital storage devices that were seized from him.'"). And it is not entirely clear from the record whether the State wants Stahl to testify to the passcode or to enter it into the phone. Cf. Gelfgatt, 11 N.E.3d at 611. If the former, the State's request could be considered under the traditional analysis of the self-incrimination privilege — that of verbal communications. [10] Although the phrase "the use of the contents of the accused's mind" has been used in act-of-production cases, we note that the case cited by the Eleventh Circuit for its proposition that the use of the contents of the accused's mind is the touchstone of whether an act of production is testimonial does not so hold. Curcio v. United States, 354 U.S. 118, 77 S.Ct. 1145, 1 L.Ed.2d 1225 (1957), provides that there "is a great difference" between compelled production of documents and compelled testimony, specifying that testifying as to the location of documents "requires him to disclose the contents of his own mind." Id. at 127-28, 77 S.Ct. 1145. [11] We recognize that the court in Kirschner reached the opposite conclusion, but because Kirschner provides no facts regarding the crimes or evidence linking Kirschner to the computer and the computer to the crimes, we cannot discuss the case except to say that our reading of the cases relied upon in Kirschner leads to the conclusion that the statement must have value beyond its actual content. We believe the facts here set forth one of the "very few instances in which a verbal statement, either oral or written, will not convey information or assert facts," and therefore would not be testimonial. Cf. Doe, 487 U.S. at 213, 108 S.Ct. 2341. [12] These considerations, we believe, allow for the balance spoken of in Doe and Schmerber, among others. See Doe, 487 U.S. at 213, 108 S.Ct. 2341 ("Even if some of the policies underlying the privilege might support petitioner's interpretation of the privilege, `it is clear that the scope of the privilege does not coincide with the complex of values it helps to protect. Despite the impact upon the inviolability of the human personality, and upon our belief in an adversary system of criminal justice in which the Government must produce the evidence against an accused through its own independent labors, the prosecution is allowed to obtain and use ... evidence which although compelled is generally speaking not "testimonial" ....'" (quoting Marchetti v. United States, 390 U.S. 62, 72, 88 S.Ct. 716, 19 L.Ed.2d 906 (1968) (Brennan J., concurring))); Schmerber, 384 U.S. at 762-63, 86 S.Ct. 1826 ("[T]he privilege has never been given the full scope which the values it helps to protect suggest. History and a long line of authorities in lower courts have consistently limited its protection to situations in which the State seeks to submerge those values by obtaining the evidence against an accused through `the cruel, simple expedient of compelling it from his own mouth.'"). [13] As noted by the Eleventh Circuit, at the time it adopted the "reasonable particularity" standard, the Ninth and D.C. Circuits had also adopted the standard. In re Grand Jury, 670 F.3d at 1344 n.20. The Second Circuit has also adopted the standard. United States v. Greenfield, 831 F.3d 106, 115-16 (2d Cir. 2016). [14] The Eleventh Circuit explained that the subpoena at issue directed Doe to appear before a grand jury "and produce the unencrypted contents" of hard drives and "any and all containers or folders thereon." In re Grand Jury, 670 F.3d at 1339. The hard drives were seized pursuant to a warrant, which presumably also allowed the Government to search the drives. The focus of the Government's request was the contents of the drives, not the decryption key. [15] Given the State's evidence and the fact that it met the standard necessary to obtain a search warrant for Stahl's iPhone, we would be inclined to find that the State had met the reasonable particularity standard for even the contents of Stahl's phone. The State knew Stahl was the individual in the store surveillance video holding an imaging device, which the victim identified as a phone; it knew that the evidence would be a photo or video file; and it knew the evidence would be authentic based upon the store surveillance video. However, nothing about our conclusion prevents Stahl from filing a motion to suppress any evidence found on the phone based on the validity of the warrant. See, e.g., Baust, 89 Va. Cir. 267 ("[T]he contents of the phone, obtained pursuant to a validly executed warrant are only subject to objections raised under the Fourth Amendment, not the Fifth Amendment." (emphasis omitted)).

Reasonable suspicion State v. Harris, 230 So. 3d 1285 (Fla. 5th DCA 2017)

Officer's observation of Defendant peeing in a parking lot supported investigatory stop. Thus, subsequent smell of marijuana on Def allowed search of person, Def , a convicted felon, was in possession of brass knuckles.

Speculation

Speculation in a warrant is not a substitute for concrete facts. (eg. Presence at residence not enough to prove drugs at reidence)

Arrest without a warrant

The arrest of the Defendant was made without a warrant. As such, the Defendant’s arrest is presumptively unreasonable. State v. Seltzer, 667 So.2d 343, 345 (Fla. 1st DCA 1995); State v. Hinton, 305 So.2d 804 (Fla. 4th DCA 1975); Bicking v. State, 293 So.2d 385 (Fla. 1st DCA 1974).

GAQL v. State

Two passcodes stand in the way of the state accessing the contents of a phone alleged to belong to a minor. The state sought, and the trial court agreed, to compel the minor to provide two passcodes, finding that "the act of producing the passcodes is not testimonial because the existence, custody, and authenticity of the passcodes are a foregone conclusion." We disagree. The minor is being compelled to "disclose the contents of his own mind" by producing a passcode for a phone and a password for an iTunes account. Further, because the state did not show, with any particularity, knowledge of the evidence within the phone, the trial court could not find that the contents of the phone were already known to the state and thus within the "foregone conclusion" exception. We grant the minor's petition for writ of certiorari and quash the trial court's order compelling the disclosure of the two passcodes. The minor was speeding when he crashed. One of the passengers in his car died in the crash. At the hospital, the police had a blood test performed, showing 1060*1060 that the minor had a .086 blood-alcohol content. After obtaining a search warrant for the vehicle, the police located two iPhones. One iPhone belonged to a surviving passenger. The surviving passenger told police that the group had been drinking vodka earlier in the day and that she had been communicating with the minor on her iPhone. The second phone, an iPhone 7, was alleged to have belonged to the minor. The police obtained a warrant to search the phone for data, photographs, assigned numbers, content, applications, text messages, and other information. After obtaining a warrant to search this iPhone, the police sought an order compelling the minor to provide the passcode for the iPhone and the password for an iTunes account associated with it. In its first motion, the state identified the iPhone and "request[ed] the court compel production of the passcode for the minor's cellular phone." In its second motion, the state sought to compel the minor to produce an iTunes password. This was necessary, the state argued, because the phone could not be searched before receiving a software update from Apple's iTunes service. Thus, the state needed both the passcode to access the phone and the iTunes password to update it. At a hearing on the motions, the state noted that the surviving passenger from the car crash had provided a sworn statement that on the day of the crash and in the days following the crash, she had communicated with the minor via text and Snapchat. The passenger had also told police that she and the minor had been consuming alcoholic beverages the day of the crash. As such, the state needed the phone passcode and iTunes password to obtain any possible communications between the defendant and the surviving passenger. The minor argued that compelling disclosure of the iPhone passcode and iTunes password violated his rights under the Fifth Amendment to the United States Constitution. The trial court disagreed and concluded in its order that the minor's "passcodes are not testimonial in and of themselves. See State v. Stahl, 206 So.3d 124, 134 (Fla. 2d DCA 2016). The passcodes merely allow the State to access the phone, which the State has a warrant to search. See id." According to the trial court, the state had established the "existence, possession, and authenticity of the documents" it sought. Thus, the "existences of the passcodes in the instant case is a foregone conclusion." Finally, the trial court determined that the act of producing the passcode and password was not testimonial. As a result, the trial court granted the state's motions to compel. The minor petitioned for writ of certiorari to quash the circuit court's order. This court has jurisdiction to issue a writ of certiorari under article V, section 4(b)(3) of the Florida Constitution. See also Appel v. Bard, 154 So.3d 1227, 1228 (Fla. 4th DCA 2015) (granting certiorari to review order compelling answers to deposition questions and overruling Fifth Amendment privilege objections); cf. Boyle v. Buck, 858 So.2d 391, 392 (Fla. 4th DCA 2003). Our standard of review when considering whether to issue such a writ is "whether the trial court ... departed from the essential requirements of law." Anderson v. E.T., 862 So.2d 839, 840 (Fla. 4th DCA 2003) (citation omitted). To warrant a writ of certiorari, "there must exist (1) a departure from the essential requirements of the law, (2) resulting in material injury for the remainder of the case (3) that cannot be corrected on postjudgment appeal." Reeves v. Fleetwood Homes of Fla., Inc., 889 So.2d 812, 822 (Fla. 2004) 1061*1061 (citation and internal quotation marks omitted). Compelled Production of the Passcodes This case is governed by the Fifth Amendment to the United States Constitution, which states: "No person ... shall be compelled in any criminal case to be a witness against himself ...." U.S. Const. amend. V; see also Fla. Const. art. I, § 9. The Fifth Amendment proscribes the compelled production of an incriminating testimonial communication. Fisher v. United States, 425 U.S. 391, 408, 96 S.Ct. 1569, 48 L.Ed.2d 39 (1976). "[I]n order to be testimonial, an accused's communication must itself, explicitly or implicitly, relate a factual assertion or disclose information. Only then is a person compelled to be a `witness' against himself." Doe v. United States, 487 U.S. 201, 210, 108 S.Ct. 2341, 101 L.Ed.2d 184 (1988) (footnote omitted). As such, acts like furnishing a blood sample, providing a voice exemplar, wearing an item of clothing, or standing in a line-up are not covered by this particular Fifth Amendment protection, for they do not require the suspect to "disclose any knowledge he might have" or "speak his guilt." Id. at 211, 108 S.Ct. 2341 (citation omitted). In other words, the Fifth Amendment is triggered when the act compelled would require the suspect "to disclose the contents of his own mind" to explicitly or implicitly communicate some statement of fact. Curcio v. United States, 354 U.S. 118, 128, 77 S.Ct. 1145, 1 L.Ed.2d 1225 (1957). In his famous dissent in Doe, Justice Stevens utilized an analogy to describe the scope of the Fifth Amendment protection against self-incrimination: "[A defendant] may in some cases be forced to surrender a key to a strongbox containing incriminating documents, but I do not believe he can be compelled to reveal the combination to his wall safe — by word or deed." Doe, 487 U.S. at 219, 108 S.Ct. 2341 (Stevens, J., dissenting). Applying this analogy to the act of producing documents responsible to a subpoena, the Supreme Court once observed, "[t]he assembly of those documents was like telling an inquisitor the combination to a wall safe, not like being forced to surrender the key to a strongbox." United States v. Hubbell, 530 U.S. 27, 43, 120 S.Ct. 2037, 147 L.Ed.2d 24 (2000). Thus, when the compelled act is one of testimony rather than simple surrender, the Fifth Amendment applies. See Fisher, 425 U.S. at 411, 96 S.Ct. 1569. This analogy has been invoked with some frequency as courts have grappled with whether being forced to produce a phone password is more akin to surrendering a key or revealing a combination. See, e.g., State v. Stahl, 206 So.3d 124 (Fla. 2d DCA 2016); In re Grand Jury Subpoena Duces Tecum Dated March 25, 2011, 670 F.3d 1335 (11th Cir. 2012); United States v. Kirschner, 823 F.Supp.2d 665 (E.D. Mich. 2010); Seo v. State, No. 29A05-1710-CR-2466, 109 N.E.3d 418, 2018 WL 4040295 (Ind. Ct. App. Aug. 21, 2018). All of these password cases, with the exception of Stahl, have determined that the compelled production of a passcode is more akin to revealing a combination than producing a key. This is so because revealing one's password requires more than just a physical act; instead, it probes into the contents of an individual's mind and therefore implicates the Fifth Amendment. See Kirschner, 823 F.Supp.2d at 669. The very act of revealing a password asserts a fact: that the defendant knows the password. See Hubbell, 530 U.S. at 43, 120 S.Ct. 2037 (stating that the Fifth Amendment applies "to the testimonial aspect of a response to a subpoena seeking discovery" of sources of potentially incriminating information). Thus, being forced to produce a password is testimonial and can violate the Fifth 1062*1062 Amendment privilege against compelled self-incrimination. See id. at 38, 120 S.Ct. 2037 ("Compelled testimony that communicates information that may `lead to incriminating evidence' is privileged even if the information itself is not inculpatory.") (quoting Doe, 487 U.S. at 208 n.6, 108 S.Ct. 2341). In accepting this interpretation of Fifth Amendment doctrine, we disagree with the Second District's Stahl opinion. In Stahl, officers sought to search a defendant's locked phone, but the defendant refused to give them his passcode. 206 So.3d at 128. The Second District concluded that making the defendant reveal his passcode was not testimonial, as the passcode was "sought only for its content and the content has no other value or significance," making communication of the passcode non-testimonial. Id. at 134. The court explicitly rejected the notion of passcode-as-combination under the Doe analogy and determined that, although it did require the use of the defendant's mind, compelled unlocking of the phone via passcode was not a protected testimonial communication under the Fifth Amendment. Id. We disagree. We find the Eleventh Circuit's decision in In re Grand Jury Subpoena to be instructive. In that case, John Doe was served a subpoena requiring him to decrypt several hard drives in his possession.[1] 670 F.3d at 1337. There, the court determined that compelled decryption of hard drives was testimonial in nature. Id. at 1346. In reaching this conclusion, the court noted that "decryption and production would be tantamount to testimony by Doe of his knowledge of the existence and location of potentially incriminating files; of his possession, control, and access to the encrypted portions of the drives; and of his capability to decrypt the files." Id. Specifically addressing the "key" and "combination" analogy, the court likened the forced decryption to production of a combination because it is "accompanied by ... implied factual statements" and utilized the contents of the mind with the final objective not of obtaining the decryption for its own sake, but for the purpose of obtaining the files protected by the encryption. Id. Thus, this case is analogous to In re Grand Jury Subpoena. Here, the state seeks the phone passcode not because it wants the passcode itself, but because it wants to know what communications lie beyond the passcode wall. If the minor were to reveal this passcode, he would be engaging in a testimonial act utilizing the "contents of his mind" and demonstrating as a factual matter that he knows how to access the phone. See id. As such, the compelled production of the phone passcode or the iTunes password here would 1063*1063 be testimonial and covered by the Fifth Amendment. Id. The Foregone Conclusion Exception Having determined that the production of the passcode and password are covered by the Fifth Amendment, we now address whether the "foregone conclusion" exception would nevertheless allow the state to compel the minor to reveal the passcode and password. We discuss this issue since the trial court applied the foregone conclusion exception below when it concluded that "the act of producing the passcodes is not testimonial because the existence, custody, and authenticity of the passcodes are a foregone conclusion." Although the foregone conclusion exception might apply in some circumstances, it does not apply here. The trial court therefore erred in relying on the foregone conclusion exception as a basis for allowing the production of the passcodes. In general, if the state can meet the requirements of the foregone conclusion exception, it may compel otherwise ostensibly self-incriminating testimonial production of information. Fisher, 425 U.S. at 411, 96 S.Ct. 1569; In re Grand Jury Subpoena, 670 F.3d at 1345-46. Under this exception, an act of production is not a violation of the Fifth Amendment — even if it conveys a fact — if the state can show with reasonable particularity that, at the time it sought to compel the act of production, it already knew of the materials sought, thereby making any testimonial aspect a foregone conclusion. Id. at 1346. As it pertains to electronic files, this doctrine requires that the state demonstrate with reasonable particularity "that (1) the file exists in some specified location, (2) the file is possessed by the target of the subpoena, and (3) the file is authentic." Id. at 1349 n.28. It is critical to note here that when it comes to data locked behind a passcode wall, the object of the foregone conclusion exception is not the password itself, but the data the state seeks behind the passcode wall. See id. at 1349 (holding that foregone conclusion exception did not apply to compelled production of encrypted files because government could not show with "reasonable particularity" that files existed on the drive to which the individual who was subpoenaed had access). To find otherwise would expand the contours of the foregone conclusion exception so as to swallow the protections of the Fifth Amendment. For example, every password-protected phone would be subject to compelled unlocking since it would be a foregone conclusion that any password-protected phone would have a passcode. That interpretation is wrong and contravenes the protections of the Fifth Amendment. Below and on appeal, the state's argument has incorrectly focused on the passcode as the target of the foregone conclusion exception rather than the data shielded by the passcode, arguing that "because the State has established the existence of the passcode and iTunes password, evidence on the Petitioner's cell phone, and that he can access the content of his phone," the compelled search was acceptable. Similarly, the trial court specifically held that the "existence, custody, and authenticity of the passcodes are a foregone conclusion" in the order appealed. This holding, which focuses on the passcodes rather than the data behind the wall, misses the mark. On this subject, we again disagree with the Second District. In Stahl, the court focused on the "reasonable particularity that the passcode exists," a fact that the state had established. 206 So.3d at 136 (emphasis in original). However, this is not the proper focus of the inquiry — it is not enough to know that a passcode wall exists, but rather, the state must demonstrate 1064*1064 with reasonable particularity that what it is looking for is in fact located behind that wall. See In Re Grand Jury Subpoena, 670 F.3d at 1348-49. Contrary to the Stahl court's conclusion, which the trial court adopted,[2] the "evidence sought" in a password production case such as this is not the password itself; rather, it is the actual files or evidence on the locked phone. Compare Stahl, 206 So.3d at 135, with In Re Grand Jury Subpoena, 670 F.3d at 1347. Without reasonable particularity as to the documents sought behind the passcode wall, the facts of this case "plainly fall outside" of the foregone conclusion exception and amount to a mere fishing expedition. Hubbell, 530 U.S. at 44, 120 S.Ct. 2037. The concurrence, meanwhile, argues that the foregone conclusion exception could never be applied to compelled "oral testimony" in any case. Like Stahl, this view seems to misconstrue the object of the foregone conclusion exception. It is not the verbal recitation of a passcode, but rather the documents, electronic or otherwise, hidden by an electronic wall that are the focus of this exception. Further, it would seem unreasonable not to subject documents protected by a passcode to the foregone conclusion exception where the state compels the subject to orally recite a passcode, but allow the foregone conclusion exception to apply to protected documents where the state compels the subject, for example, to physically write down a password, effectively creating the document. In both scenarios the subject is compelled to disclose the "contents of his mind" by different modalities — written in one scenario and oral in the other — to the same inculpatory effect. See Couch v. United States, 409 U.S. 322, 328, 93 S.Ct. 611, 34 L.Ed.2d 548 (1973) ("It is extortion of information from the accused himself that offends our sense of justice.") (emphasis added). However, in any event, since the state did not know with "reasonable certainty" the electronic documents behind the wall, this is not dispositive to the resolution of this case. Here, the state's subpoena fails to identify any specific file locations or even name particular files that it seeks from the encrypted, passcode-protected phone. Instead, it generally seeks essentially all communications, data, and images on the locked iPhone. The only possible indication that the state might be seeking anything more specific was the prosecutor's statement at the hearing that the surviving passenger had been communicating with the minor via Snapchat and text message on the day of the accident and after the accident, a fact that the trial court briefly mentioned in its order but did not appear to rely on in reaching its conclusion. However, this stand-alone statement is not enough to meet the "reasonable particularity" requirement of the foregone conclusion exception. Even if the state had argued that the evidence on the phone was a foregone conclusion — which it did not — this record does not indicate that the state can say with reasonable particularity that the Snapchat and text files are located on the phone. It is not enough for the state to infer that evidence exists — it must identify what evidence lies beyond the passcode wall with reasonable particularity. Stahl, 206 So.3d at 135-36; see also In re Grand Jury Subpoena, 670 F.3d at 1347 ("[C]ategorical requests for documents the government anticipates are likely to exist simply will not suffice."). Thus, as was the case in In re Grand Jury Subpoena, the foregone 1065*1065 conclusion exception is inapplicable. See 670 F.3d at 1349. We also find Seo persuasive. Like in this case, there the state sought to compel a defendant to unlock her iPhone in order to search it. 109 N.E.3d at 421, 2018 WL 4040295 at *2. After holding that doing so would implicate the Fifth Amendment, the Court of Appeals of Indiana concluded that the foregone conclusion exception did not apply. Id. at 431-33 at *11-12. It noted that the government seeking to compel the production of a passcode must "be able to describe with reasonable particularity the documents or evidence it seeks to compel." Id. at 432 at *12. Importantly, the court observed that "[w]hat is being compelled here is not merely the passcode," but the contents of the phone that are instantly decrypted in their entirety upon inputting the passcode. Id. at 434 at *13. Because the state could not meet its burden of identifying the contents — that is, the actual phone data — sought with reasonable particularity, the foregone conclusion exception did not apply. Id. The state here seeks to force the minor to produce the passcode and iTunes password for an iPhone. To do so would be to compel testimonial communications in violation of the minor's invocation of his Fifth Amendment rights. See In re Grand Jury Subpoena, 670 F.3d at 1346. Additionally, the trial court erred in relying on the foregone conclusion exception, as the requirements of that exception were not met. See id. at 1349. As such, we grant the minor's petition for writ of certiorari and quash the order of the trial court. Petition granted; order quashed. Ciklin, J., concurs. Kuntz, J., concurs in result only with opinion. Kuntz, J., concurring in result. I agree with the Court that the circuit court's order must be quashed, but I would do so on different grounds. The majority concludes that compelling the minor to reveal the passcode to his iPhone and the password to an unidentified iTunes account would require the minor to use the contents of his mind in violation of the Fifth Amendment. I agree with that conclusion. But the majority also holds that the State may overcome this violation of the minor's Fifth Amendment rights if the foregone conclusion exception applies. Op. 1062 (citing Fisher v. United States, 425 U.S. 391, 411, 96 S.Ct. 1569, 48 L.Ed.2d 39 (1976); In re Grand Jury Subpoena Duces Tecum Dated March 25, 2011, 670 F.3d 1335, 1345-46 (11th Cir. 2012)). "[A] person may be required to produce specific documents even though they contain incriminating assertions of fact or belief because the creation of those documents was not `compelled' within the meaning of the [Fifth Amendment] privilege." United States v. Hubbell, 530 U.S. 27, 35-36, 120 S.Ct. 2037, 147 L.Ed.2d 24 (2000). But that same person cannot be compelled to offer oral incriminating testimony. See, e.g., United States v. Spencer, 17-CR-00259-CRB-1, 2018 WL 1964588, at *2 (N.D. Cal. Apr. 26, 2018) (footnote omitted) ("[T]he government could not compel Spencer to state the password itself, whether orally or in writing."); Virginia v. Baust, No. CR14-1439, 2014 WL 10355635, at *4 (Va. Cir. Ct. Oct. 28, 2014) ("[T]he Defendant cannot be compelled to produce his passcode to access his smartphone but he can be compelled to produce his fingerprint to do the same."); United States v. Kirschner, 823 F.Supp.2d 665, 669 (E.D. Mich. 2010) ("[T]he government is not seeking documents or objects — it is seeking testimony from the Defendant, requiring him to divulge through his mental processes 1066*1066 his password — that will be used to incriminate him."). The foregone conclusion exception is a judicially created exception. See Hubbell, 530 U.S. at 44, 120 S.Ct. 2037; Fisher, 425 U.S. at 411, 96 S.Ct. 1569. It is not found within the Fifth Amendment. It is also a doctrine of limited application. See Hubbell, 530 U.S. at 44, 120 S.Ct. 2037 ("Whatever the scope of this `foregone conclusion' rationale, the facts of this case plainly fall outside of it."). The Supreme Court has applied the foregone conclusion exception only when the compelled testimony has consisted of existing evidence such as documents. But, here, the State sought to compel the oral production of the requested information. The foregone conclusion exception has not been applied to oral testimony, and for good reason. In Fisher, the court explained that compelling a taxpayer to produce documents "involves substantial compulsion. But it does not compel oral testimony; nor would it ordinarily compel the taxpayer to restate, repeat, or affirm the truth of the contents of the documents sought." 425 U.S. at 409, 96 S.Ct. 1569. Based on what the production in Fisher would not do, the Supreme Court allowed the government to compel the production of documents. Id. Requiring the accused to orally communicate to the government information maintained only in his mind would certainly compel oral testimony. So, in my view, the basis for granting the petition is not that the State failed to satisfy the requirements of the foregone conclusion exception. Rather, the petition should be granted because the foregone conclusion exception is inapplicable to the compelled oral testimony sought in this case. In response, the majority states that "it would seem unreasonable not to subject documents protected by a passcode to the foregone conclusion exception where the state compels the subject to orally recite a passcode, but allow the foregone conclusion exception to apply ... where the state compels the subject ... to physically write down a password...." Op. 1064. I agree it would be unreasonable to treat the two situations differently, as "the protection of the privilege reaches an accused's communications, whatever form they might take." Schmerber v. California, 384 U.S. 757, 763-64, 86 S.Ct. 1826, 16 L.Ed.2d 908 (1966); see also Spencer, 2018 WL 1964588, at *2. I would therefore treat both situations identically and conclude the foregone conclusion exception is inapplicable to both. Finally, because I would conclude that the foregone conclusion doctrine cannot apply to compelled oral testimony, I would go no further. We need not address whether the forced decryption of a device would also violate the Fifth Amendment. See Op. 1062 n.1. That question should be left for another case, one where the State has sought the forced decryption of a device as a remedy. [1] That this case involves the production of a passcode and password rather than decryption is of no consequence. With iPhones and many other smartphones, inputting a passcode chosen by the user is simply an abbreviated means of decrypting the phone's contents, which are automatically encrypted by the phone whenever it is locked: An encryption key is basically a very long string of numbers that is stored in the encryption software's memory. The software users do not have to remember this long number; instead [they] can enter a more easily remembered password or passphrase, which in turn activates the encryption key. When the government seeks to compel an ordinary citizen to turn over the means by which he can decrypt the data, the disclosure order will typically compel him to turn over his password rather than the encryption key. Seo, 109 N.E.3d at 423, 2018 WL 4040295 at *4 (quoting Michael Wachtel, Give Me Your Password Because Congress Can Say So, 14 U. Pitt. J. Tech. L. & Pol'y 44, 48 (2013)). In other words, the particular type of technology used to protect the information sought is not dispositive of whether the Fifth Amendment applies. Decryption and passcode production are thus governed by the same Fifth Amendment analysis. [2] The trial court was obligated to follow Stahl below. See Pardo v. State, 596 So.2d 665, 666 (Fla. 1992) ("[I]n the absence of interdistrict conflict, district court decisions bind all Florida trial courts.").

Reasonable suspicion Exantus-Barr v. State, 193 So. 3d 936 (Fla. 4th DCA 2016)

"Find My iPhone" location and only persons in vicinity generally matching description of robber sufficient to allow stop.

Traffic Stop elemetns

"In order to conduct a lawful investigatory stop of a vehicle, an officer must have either probable cause for a civil traffic infraction or reasonable suspicion of criminal activity. Ellis v. State, 755 So. 2d 767 (Fla. 4th DCA 2000); see also Whren v. United States, 517 U.S. 806 (1996); § 901.151, Fla. Stat. (2004). Mere suspicion of criminal activity is not enough to support a stop." Popple v. State, 626 So. 2d 185,186 (Fla. 1993). Investigatory detention is justified only if the detaining officers have a founded suspicion that the suspect has committed, is committing, or is about to commit a crime. Cooks v. State, 28 So. 3d 147, 149 (FlIn Beahan v. State, the Court suppressed a stop wherein the defendant was driving "slowly" and stopping frequently in front of houses on a two-lane road then, "made a U-turn by driving his vehicle up over the curb on the opposite side of the street" where the driver could have made a three-point turn. 41 So.3d 1000, 1001 (Fla. 1st DCA 2010). According to the officer, "the wheels of the defendant's car went onto the grass about two or three feet from the edge of the curb." Id at 1001-1002. The Court reasoned that the officer did not have reasonable suspicion of impairment at the time of the stop. Id. Additionally, the officer never cited the driver for the alleged traffic infraction upon which the stop was predicated. Id. at 1002. The Court further reasoned that, "[w]hether [the officer] had probable cause to stop the defendant for a traffic infraction is questionable in any event. Section 316.1515, Florida Statutes prohibits a driver from making a U-turn only if such a turn is prohibited by a posted traffic sign or if the turn cannot be made safely and without interfering with traffic. See Bender v. State,737 So.2d 1181 (Fla. 1st DCA 1999) (concluding that the officer had probable cause to make an arrest for an illegal turn because the turn was made near a dangerous curve). As we have explained, there was no traffic in the area and the defendant appeared to be operating his vehicle safely." Id.

PC for Arrest

"Notwithstanding the aforementioned, the arrest was also illegal. Â Probable cause should be based in objective facts, not the subjective feelings of the investigator. Â See State v. Brown, 725 So. 2d 441 (Fla. 5th DCA 1999) (emphasis added).

Florida Basis for Suppression without Exlusionary Rule

"Terry v. Ohio, 392 U.S. 1 (1968) - "articulable reasonable suspicion"

MM arrest without seeing offense in traffic crash

"The Defendant was illegally arrested by an officer without a warrant that did not see the crime committed in his presence and/or did not conduct a crash investigation at the scene of the crash. (emphasis added). Therefore, all evidence resulting in the unlawful arrest must be suppressed. See Section 901.15, Florida Statutes (2018); Section 316.645, Florida Statutes (2018); State v. Harms, 2007-CT-030858 (Div. J, 2009) â€" affirmed on appeal, State v. Harms, 2009-AP-69 (CR-F, Judge Haddock, 2010); State v. Gaus, 2010-CT-024308 (Div. C, 2011); State v. Barrows, 2011-CT-016409 (Div. C, 2011); State v. Raynor, CT07-44529 (County Court, Seventh Judicial Circuit, September 22, 2007); State v. Hooks, 15 Fla. L. Weekly Supp. 886 (Circuit Court, Seventh Judicial Circuit, June 30, 2008). The Officer was not conducting an investigation “at the scene of a traffic crash†as required by the plain language of Section 316.645, Florida Statute (2018), which states: Arrest authority of officer at scene of a traffic crash.â€"A police officer who makes an investigation at the scene of a traffic crash may arrest any driver of a vehicle involved in the crash when, based upon personal investigation, the officer has reasonable and probable grounds to believe that the person has committed any offense under the provisions of this chapter, chapter 320, or chapter 322 in connection with the crash. The Officer therefore violated Section 901.15(1) because the Officer did not have lawful authority to make a warrantless arrest. Therefore, all evidence resulting in the unlawful arrest must be suppressed. See Section 901.15, Florida Statutes(2018); Section 316.645, Florida Statutes (2018); Department of Highway Safety and Motor Vehicles v. Williams, 937 So.2d 815 (Fla. 1st DCA 2006), Steiner v. State, 690 So.2d 706 (Fla. 4th DCA 1997); State v. Prest, 14 Fla. L. Weekly Supp. 663 (County Court, Seventh Judicial Circuit, April 17, 2007).

Impermissibly long detention

"The United States Supreme Court ruled in Rodriguez v. State that, “the tolerable duration of police inquiries in the traffic-stop context is determined by the seizure's `mission' â€" to address the traffic violation that warranted the stop, [Illinois v.] Caballes, 543 U.S. [405,] 407, 125 S.Ct. 834, 160 L.Ed.2d 842 [(2005),] and attend to related safety concerns." Rodriguez, 135 S.Ct. 1609, at 1614 (2015) as cited by Jones v. State, 187 So.3d 346 (Fla. 4th DCA 2016). The Rodriguez Court emphasized that a stop, “may `last no longer than is necessary to effectuate th[at] purpose.'" Rodriguez, 135 S.Ct. at 1614 quoting Florida v. Royer, 460 U.S. 491, 500, 103 S.Ct. 1319, 75 L.Ed.2d 229 (1983). In Jones, Florida Fourth DCA quoted Rodriguez’ holding that, “[t]he officer's ‘[a]uthority for the seizure thus ends when tasks tied to the traffic infraction are â€" or reasonably should have been â€" completed.’â€Â Jones, 187 So.3d at 347 (Fla. 4th DCA 2016). The Jones court further determined that, “[w]hen determining the reasonable time to complete the required tasks, the court must also consider the ‘whether the police diligently pursue their investigation.’ Id. citing United States v. Place, 462 U.S. 696, 709, 103 S.Ct. 2637, 77 L.Ed.2d 110 (1983). Jones court noted that, previously the Court has held in Arizona v. Johnson, 555 U.S. 323, 333, 129 S.Ct. 781, 172 L.Ed.2d 694 (2009), that a traffic stop “‘can become unlawful if it is prolonged beyond the time reasonably required to complete th[e] mission of issuing a ticket, Caballes,543 U.S. at 407, 125 S.Ct. 834, and that a seizure is lawful only ‘so long as [unrelated] inquiries do not measurably extend the duration of the stop. Jones, 187 So.3d at 347 (Fla. 4th DCA 2016) citing Arizona, 129 S.Ct. 781 (2009).

Community caretaker doctrine argument "safety"

"he State of Florida likely relies on the Community Caretaker Doctrine which allows officers to inquires as to whether a person is ill, tired, or impaired to protect the welfare of others. Majors v. State, 70 So. 3d 655 (Fla. 1st DCA 2011) (emphasis added). Under the community caretaking doctrine, officers may properly stop a vehicle without reasonable suspicion of criminal activity if the stop is necessary for public safety. Id. Citing Shively v. State,61 So.3d 484, 485-86, 2011 WL 2029622, at *1 (Fla. 2d DCA 2011) (holding that where a driver was having trouble putting a coin into the automated gate to exit a parking lot thereby causing several other cars to be trapped in a parking garage, the officer properly made contact with the driver). Even when no traffic infraction is suspected, an officer is permitted to stop a vehicle when it is being operated in an unusual manner.State v. Rodriguez,904 So.2d 594, 598 (Fla. 5th DCA 2005). In Majors, the Court clearly explained that “[t]he purpose of such a stop is to ascertain whether the driver of the vehicle is in need of assistance due to illness, tiredness, or impairment and to protect the motoring public from harm.â€Â Majors, at 662 (Fla. 1st DCA 2011) citingShively, 61 So.3d at 486, 2011 WL 2029622 at *2; Cady v. Dombrowski, 413 U.S. 433, 441, 93 S.Ct. 2523, 37 L.Ed.2d 706 (1973). In Cady, the Court clearly explained that this type of stop is totally divorced from the detection, investigation, or acquisition of evidence relating to the violation of a criminal statute." Cady, 413 U.S. at 441, 93 S.Ct. 2523.  Here, there is no division between the initial encounter and the detention. Furthermore, these types of stop or interactions must be based upon “specific articulable facts showing that the stop was necessary for the protection of the public. Majors, at 661, citing Castella v. State, 959 So.2d 1285, 1292 (Fla. 4th DCA 2007). Here, the Officer could not articulate facts that show it was necessary for the protection of the public to stop the Defendant. Prior to the stop, the Officer had no articulable facts that support that the public’s safety was in jeopardy. Therefore, the stop was unlawful.

Stop -- length of detention Vangansbeke v. State, 223 So. 3d 384 (Fla. 5th DCA 2017)

20 minute delay in bringing sniff dog to scene of traffic stop did not constitute unreasonable detention. Officer had not finished writing citation when dog arrived.

Followed: Burton v. State, ___ So.3d ___, 2018WL1136041 (Fla. 5th DCA, March 2, 2018) Knock and Announce Falcon v. State, 230 So. 3d 168 (Fla. 2d DCA 2017).

6:45 a.m. execution of warrant for growing 26 plants of marijuana in a shed in the backyard. After announcing "Sheriff's Department" three times, the officer breached the door with a battering ram and other tools and set off noise flash devices. There was no showing of reason to believe weapons present, that the police were expected, or any concerns for safety. Denial of motion to suppress reversed and court expressly asks police to use SWAT tactics like this sparingly.

GOOD FAITH PC for warrant and good faith reliance. State v. Hayward, 215 So. 3d 178 (Fla. 5th DCA 2017)

Affidavit for search warrant: CI calls Def who says I will deliver 4 oz. of cocaine to the IHOP parking lot in 20 min. Officers surveilling the Def see him drive to his residence where he remained for 15 min. Def then goes to IHOP where he is arrested. Sufficient for PC? Yes, says the 5th DCA and if it isn't the officer justifiably relied on the issuance in "good faith". Suppression reversed.

Search Warrant -- knock and announce. State v. Taylor, 201 So. 3d 1240 (Fla. 5th DCA 2016)

Appellate court overrules granting of motion to suppress finding that the entry was allowed because of potential destruction of evidence. Strangely, the Court states that this is based upon the evidence and testimony presented, but fails to cite to a single fact that appears in the record. Nor do they remand for findings by the trial judge here actually heard the evidence. (trial court erroneously foreclosed any exception to the knock and announce rule.)

Blood Draws — warrantless Aguilar v. State, 2018 WL 443165 (Fla. 3d DCA 2018)

At 4:22 a.m. the Defendant lost control of his car as he approached an accident scene and plowed into cars and persons, killing one and injuring three, two seriously. Troopers arrived at the trauma center at 5:09 a.m., already armed with information that Aguilar was impaired from alcohol. Concerned of "time constraints", the trooper ordered a blood draw without a warrant. The blood was drawn at 5:42a.m. Testimony from the State was that it would take 4 hours to obtain a warrant from the time the process began. The Court held that this created sufficient exigency to allow a warrantless draw. Essentially, the Court carved out a standing exception to ALL blood draws in accidents that do not happen in the hospital parking lot. The opinion ignores that electronic warrants have been available in the jurisdiction of the Third District for years and that the agents have not availed themselves of the modern electronic process.

Citizen Encounter or Detention Moore v. State, 200 So. 3d 1290 (Fla. 2d DCA 2016)

At the request of store owner, officer detained Def to issue a written trespass warning. Def agrees to leave, but officer requires him to wait for the written notice. During the process, officer develops PC to believe Def in possession of cocaine and arrests. Court finds that a mere oral trespass warning is a citizen encounter, but when the officer forced the Def to wait it ripened into a detention. Evidence should have been suppressed.

Reasonable suspicion not present from cloud of M smoke.

B.G. v. State, 213 So. 3d 1016 (Fla. 2d DCA 2017)................................................34 Officer encounters 4 juveniles standing in a cloud of marijuana smoke. He observes one of the children discard a lit cigarette, all of the four smelled equally of marijuana. Officer begins to search the children and when B.G. refuses to consent to the search is arrested for Obstruction. Courts finds odor of marijuana emanating from a group of individuals insufficient to provide more than a "mere suspicion" that B.G. possessed marijuana and did not support the initial detention. Since officer was not in the lawful execution of his duty, obstruction conviction reversed.

No reason suspicion Brown v. State, 224 So. 3d 806 (Fla. 2d DCA 2017)

Brown observed leaving a property after being told to leave by owner. Officers engaged him in conversation. Through a "sixth sense", the officer felt threatened and told Brown he was going to conduct a putdown. The officer grabbed Brown's hands to put the onto of his head and Brown bolted. He was convicted of Obstruction and Battery on a LEO. Reversed, the Court finding that no reasonable suspicion of criminal activity existed to justify the detention (no trespass was being committed). Further, the Court held, even if there was RS to detain, there was no reasonable belief that Brown was armed. Convictions reversed.

Reasonable Suspicion Grayson v. State, 212 So. 3d 481 (Fla. 5th DCA 2017) .........................................

Burglary reported at 3:00a.m. Within 30 min. police see Def emerging from woods separating victims home from ball field. Upon being to directed to stop, Def fled. Upon being detained, officers located fruits of burglary on ground where Def standing. Trial Judge Robin Lemonidis ruled that a very recent burglary, Def roaming in and out of woodline at 3:00a and Def's flight sufficient to justify detention. Affirmed.

Carpenter v. United States, 138 S.Ct. 2206 (2018)

CSLI requires a warrant....he majority determined that the third-party doctrine applied to telephone communications in Smith v. Maryland could not be applied to cellphone technology and ruled that the government must obtain a warrant in order to access historical cellphone records. Roberts argued that technology "has afforded law enforcement a powerful new tool to carry out its important responsibilities. At the same time, this tool risks Government encroachment of the sort the Framers [of the US Constitution], after consulting the lessons of history, drafted the Fourth Amendment to prevent."[33] The majority adds, [S]eismic shifts in digital technology [] made possible the tracking of not only Carpenter's location but also everyone else's, not for a short period but for years and years. Sprint Corporation and its competitors are not your typical witnesses. Unlike the nosy neighbor who keeps an eye on comings and goings, they are ever alert, and their memory is nearly infallible. There is a world of difference between the limited types of personal information addressed in Smith and Miller and the exhaustive chronicle of location information casually collected by wireless carriers today.[34] Roberts's opinion reasoned that the "detailed, encyclopedic, and effortlessly compiled" data used in tracking of a person by cell towers was qualitatively similar to that of using a Global Positioning System (GPS) tracking device as determined by Jones.[35] Roberts stressed that the decision is a very narrow ruling; it does not affect other parts of the third-party doctrine, such as banking records, nor does it prevent collection of cell tower data without a warrant in emergencies or for national security issues.[36]

Cellphone Search -- Good Faith Reliance Carpenter v. State, 228 So. 3d 535 (Fla. 2017)

Cellphone seized as part of child porn investigation, searched without warrant. Def sought suppression based upon Smallwood v. State, 113 So.3d 724 (Fla. 2013)(warrantless search of cellphone violates Fourth Amendment.). State claims that officers acted in good faith in that the 1st DCA decision in Smallwood (61 So.3d 448) was still good law when they conducted their search. An officer may, generally, rely upon on binding appellate precedent and assert a good faith exception to exclusionary rule. Davis v. United States, 131 S.Ct. 2419 (2011). However, here, the 1st DCA certified the question to the Fla. S.Ct. in its opinion. Under our review system, even if binding on other courts through the state, where the question is certified and pending in the Florida Supreme Court, it is not considered binding precedent for law enforcement purposes.

State v. K.C., 207 So. 3d 951 (Fla. 4th DCA 2016).

Cellphones recovered from abandoned stolen car. One phone had picture on screen of individual (Def) who looked like person who fled from car. Police find way past passcode and find information incriminating Def. Def moves to suppress as information gathered without a warrant. Court held "that a categorical rule permitting warrantless searches of abandoned cell phones, the contents of which are password protected, is...unconstitutional."

Service of Traffic Citations

Constitutes "taking into custody" for speedy purposes. 3.191(a) and Rodriguez v state

Open View Doctrine and Standing Davis v. State, 226 So. 3d 318 (Fla. 2d DCA 2017)

Davis lived in rooming house. Upon seeing police he secreted an opaque pill bottle in some concrete lattice work attached to foundation of house. Officer suspects this bottle contained drugs but has no objective information to support this. Officer approaches Davis and upon being rebuffed in his inquiry, handcuffs Davis and stuffs him in the police car. Officer then enters property and seizes the pill bottle which contains cocaine. Court reverses trial court's denial of motion to suppress. Clearly, the officer did not have probable cause to conduct a search and even if he did, the officer had entered the property to retrieve the bottle from under the house. Important to note, the cout found that Davis had standing over the common areas of the property (as one of the tenants of the rooming house) and had not "abandoned" the bottle.

Knock and Talk -- authority exceeded Friedson v. State, 207 So. 3d 961 (Fla. 5th DCA 2016)

Deaf Def did not hear officer knock. Officers went to window two feet to right of door, off of porch and shined lights through window. Officers then smelled marijuana coming from air conditioner in window. Appellate Court holds that "plain smell" doctrine does applies only when officers in a place they have a legal right to be. Off of the porch on the property in front of the window did not apply.

Clothing Seizure without warrant. Purifoy v. State, 225 So. 3d 367 (Fla. 1st DCA 2017)

Def found at hospital with gunshot wound. Officers seize Def's bloody clothes from emergency room from hospital personnel. Court points out that issue is not whether Def had a reasonable expectation of privacy in the emergency room, but rather, that he had a possessory interest in his clothing. Nonetheless, the bloody nature of the clothing supplied PC to believe that it was evidence of a crime and the open view doctrine applied.

Reasonable suspicion State v. Dickey, 203 So. 3d 958 (Fla. 1st DCA 2016)

Def standing next to car in middle of road. Officer lights up car and it takes off. Officer asks for ID, Def has none, gives name, and is observed by officer telling female companion "say Shawn". Officer believed he was lying about name given and puts Def under arrest. Search reveals true identity, a felony warrant and cocaine. Court finds no reasonable suspicion of criminal activity, detention and handcuffing illegal. Question: Is the taint of the officer's illegal actions purged by the outstanding arrest warrant. Under these facts, NO. Court looks at Fla.S.Ct. treatment of Brown v. Illinois, 95 S. Ct. 2254 (1975) in Frierson v,. State, 926 So.2d 1139 (Fla. 2006). Ordinarily, the discovery of identity and the subsequent warrant is the intervening circumstance necessary to purge the taint. Here, the Court found, that the unlawful activity was for the purpose of determining identity and thus was directly related to the illegal activity. Suppression upheld.

Reasonable Suspicion -- State v. Jones, 203 So. 3d 972 (Fla. 2d DCA 2016) .

Def stopped for no light on bicycle. Upon asking for his ID, Def started to look into his bookbag. "For officer safety", the officers then handcuffed the Defendant and searched the bookbag, finding 6 oz of marijuana, $308 and a scale. Finding no reasonable suspicion, the Court held the search of the bag unlawful.

Traffic stop State v. Battle, 232 So. 3d 493 (Fla. 2d DCA 2017)

Def vehicle parked on wrong side of road (noncriminal traffic infraction), officer sees shotgun being handled near persons known to be felons. Gun put in trunk of car, Def gets into drivers seat. Officer conducts stop as Battle pulls out, finds that Battle is convicted felon and in possession of cocaine. Trial court's suppression reversed. Even if pretextual, the traffic violation supports the stop.

Black Box State v. Worsham, 227 So. 3d 602 (Fla. 4th DCA 2017)

Def's car in crash, one dead. Police download data from "black box" (event data recorder) without warrant. Def later charged with DUI manslaughter and vehicular homicide. Def seeks suppression of data as having been seized without warrant or consent. Judge Robert Gross analogized the black box to a cellphone and noting extensive much information is recorded, and how difficult it is to obtain the data, found that Riley v. California 134 S.Ct. 2473 (2014) supported the requirement of a warrant. Granting of the Motion to Suppress upheld. Judge Forst dissented. U.S.S.Ct. refused to accept cert. 138 S.Ct. 26 (2017)

Passcode to cellphone State v. Stahl, 206 So. 3d 124 (Fla. 2d DCA 2016)

Defendant believed to be filming women with cellphone held under their skirt. Cellphone seized from Def but he refused to consent to search of phone. Search warrant issued for phone but Def refused to give passcode. State moves to compel passcode and trial court denies ruling that Pascoe was testimonial and that "foregone conclusion doctrine" (not testimonial where the location, existence and authenticity of information already known with particularity) not established. For a 5th Amendment objection, Stahl needed to show 1) compulsion, 2) a testimonial communication or act and 3) incrimination. Here the only issue was whether production was testimonial. Finding this is a case of "production" not testimony, the Court allows for the passcode to be compelled.

Warrantless Entry State v. Markus, 211 So. 3d 894 (Fla. 2017)

Defendant observed smoking what appeared to be a marijuana cigarette. As the officers approached, Markus retreated into his open garage/recreational room. Without seeking to secure the "joint", the officers entered the "joint". Upon arresting Markus in his living room, they discovered he had a firearm (possessed by a convicted felon). See opinion for other reports of very heavy-handed police activity. Issue: Could the officer enter the home without a warrant in "hot pursuit" The Court had no problem finding the garage to be part of the curtilage of the house and afforded the same protections as the home. The State claimed "hot pursuit", but in discerning the U.S.S.Ct.'s intent in Welsh v. Wisconsin, 466 U.S. 740, 104 S.Ct. 2091, 80 L.Ed.2d 732(1984), the Court held that entry was unlawful. There was no danger to the public or the police, They could have secured the evidence without entry and no exigency existed to justify entry or this nonviolent minor infraction.

Reasonable Suspicion Deno v. State, 230 So. 3d (611 (Fla. 2d DCA 2017)

Deno a passenger in car and is asked for ID by officer. Deno gives false name (photo that came up under that name clearly a different person.). Upon providing a fingerprint, Deno's real ID and probation warrant come up. Officer arrested Deno for giving false info to the officer. At the detention center Deno's bag cocaine fell from her pants. She moved to suppress due to illegal arrest on the false name charge. Court finds this was a citizen encounter that became a detention only because Deno lied to the officer. Since the probation warrant was found during a legal detention, cocaine would not be suppressed.

Warrant, no PC -- insufficient nexus -- good faith inapplicable Castro v. State, 224 So. 3d 281 (Fla. 2d DCA 2017)

Due to gaps in surveillance during set-up drug transaction, officer do not actually see Def go to Premises (1/4 mile from last observation). Def goes to several places before delivery of meth. Thus, while it is clear there was PC to believe a crime was being committed, there was insufficient nexus to Premises. Court finds o good faith reliance as the information so weak that an objective officer would have known there was not PC for the Premises.

Inevitable discovery Cole v. State, 190 So. 3d 185 (Fla. 3d DCA 2016).

During traffic stop, officer removes Cole from car for patdown. Late hour, nervousness, grasping a potential weapon, odd responses and weird demeanor justified the patdown. Upon alighting from car Cole discards some crack cocaine under the car. Although patdown illegally exceeds scope permissible, the crack found in Cole's socks are still admissible under the inevitable discovery doctrine. Police were going to search for the cocaine under the car and that would have allowed discovery of the cocaine on Cole's person.

Blood Draw Montes-Valeton v. State, 216 So. 3d 475 (Fla. 2017)

Fellow Officer Rule: An arresting officer may rely upon information supplied by other officers. Here, Trooper A arrives on scene of fatal accident. He detects indicia of alcohol consumption and impairment. Trooper B shows up and is assigned the investigation. He talks to A but is not given information of impairment or alcohol consumption. B detects none, but requests blood from Defendant under Implied Consent. Holding: Fellow Officer Rule allows probable cause from information provided by other offices but NOT through mental telepathy. In the absence of being told by A of the facts that would allow PC, Trooper B did not have probable cause to allow for the draw under s. 316.1933(1). Since the "consent" for the draw was after Montes was "improperly threatened", his consent was invalid. Conviction reversed.

Protective sweep -- inevitable discovery Young v. State, 207 So. 3d 267 (Fla. 2d DCA 2016)

Firefighters and police respond to house fire. From outside garage drug paraphernalia observed. After fire in bedroom put out, fireman point out paraphernalia to police. They then go in and "re-sweep" the house. No new fires found but a cooler of pot is observed in a closet. Firemen point out cooler of pot to police. All of this is followed by a "voluntary" consent. Guns and cash also found. Motion to Suppress denied. 2nd DCA holds: Searches by firemen were part of administrative sweep/search. Thus, paraphernalia in garage and pot in cooler admissible. The guns and cash were not admissible due to "inevitable discovery" rule. There must be showing that officers were actually in pursuit of warrant, not that they could possible get one. Rodriguez v. State, 187 So.3d 841 (Fla. 2015)

Search incident to arrest Harris v. State, 2018 WL 443156 (Fla. 3d DCA 2018)

Harris arrested for reckless driving after short chase and Harris falling off dirt bike. Police take backpack off Harris and place it 5 feet from patrol car. When asked for ID, Harris directs officers to front pocket of backpack, specifically asking them not to open the rest. Officer opens additional compartment and smells marijuana. Court finds that this was not search incident because it was not within Harris' immediate reach and it was no longer a container upon his person. Court equates the backpack to a cellphone under Smallwood or a piece of luggage under Gant. Court further finds it was not an automobile search and no consent was given. Interesting case, very fact driven.

Extra Jurisdiction Arrest Aldin v. State, 215 So. 3d 91 (Fla. 3d DCA 2017)

Here officers investigation and arrest outside of his city authorized by Florida Mutual Aid Act, s. 23.1225. Officer testified that he complied with Agreement between two cities.

Blood Draws and other Biological Mysteries Blood Draws — warrantless Goodman v. State, 229 So. 3d 366 (Fla. 4th DCA 2017)

In Missouri v. McNeely, 133 S.Ct. 1552 (2013) the USSCt held that a blood draw constituted a search of the individual and of such gravity that a search warrant should be obtained. They further held that "the natural dissipation of alcohol in the bloodstream does not constitute an exigency sufficient to justify conducting a blood test without a warrant. In Goodman, the Defendant left the scene and, after an hour, went to the hospital. It was more than two hours after the accident that the investigators found the victim's vehicle and body. It was four hours before they found Goodman at the hospital. Finding this was not a "routine DUI", the Court found that the passage of time here constituted and exigency which allowed a warrantless draw.

Reasonable Suspicion -- BOLO Sammiel v. State, 225 So. 3d 250 (Fla. 4th DCA 2017)

Minivan stopped a few minutes and a few miles from scene of murder. Not much traffic on road, pretty close description. Always fact specific determinations but Court notes 4 factors: 1) distance and time; 2) route of flight; 3) specificity of description of vehicle and occupants,; and 4) source of BOLO.

Search Warrants

Must be based upon PC supported by an affidavit

STOPS AND DETENTIONS

Objective Mistake of the Officer State v. Rand, 209 So. 3d 660 (Fla. 1st DCA 2017)................................................18 Late night jogger on school property arrested for trespass. Ooops. The school had posted signs inviting the public to use the track facilities. Court finds the officer's "mistaken" belief that the track was not open WAS NOT an "objectively reasonable" mistake under Heien v. North Carolina, ___ U.S. ___, 135 S.Ct. 530, 190 L.Ed.2d 475 (2014). Seems that the sign inviting the public was located just feet from the site of the arrest.

Detention - Reasonable suspicion State v. Godard, 202 So. 3d 144 (Fla. 2d DCA 2016).

Officer advised that Def left two dogs in her car for 20-30 minutes. Def driving away as Officer arrives. Officer follows Def, initiates traffic stop. Purpose of stop was for safety check of dogs. Upon interaction with Def, Officer discovers her DUI, license permanently revoked. Trial court found that officer could see dogs not suffering when he approached car, thus ending justification for further detention. Appellate court discounts this factual finding, holding that even if the dogs were okay, it was okay for the officer to make contact "to comport with common courtesy and good public relations..." Apparently saying "never mind" and "you are free to leave" over the loudspeaker is not good enough.

Traffic stop State v. Benjamin, 229 So. 3d 442 (Fla. 5th DCA 2017)

Officer may direct driver to exit vehicle during traffic stop even in absence of particularized basis to believe driver is a threat to safety. Maryland v. Wilson, 117 S. Ct. 882 (1997).

Reasonable suspicion Jacobson v. State, 227 So. 3d 712 (Fla. 1st DCA 2017)

Officer observes an extremely intoxicated Jacobson in parking lot of bar. He warns her not to drive. Twice he sees her walking toward her car but Jacobson stopped when she saw the officer. 93 minutes after first observation, the officer sees Jacobson's car pull out of the parking lot. After confirming she was behind the wheel, estopped her car and ultimately arrests Jacobson for DUI and the cocaine found in her pocket. Stop upheld.

Consent to Search Villanueva v. State, 189 So. 3d 982 (Fla. 2d DCA 2016)

Officer pulls over Def for stop sign violation. A license check revealed Def on probation. Instead of writing citation, officer asks for consent to search van and person. Def responds, "Go ahead. I have no choice because I am on probation." Search reveals meth. While not specifically ruling the detention was illegal, the Court was obviously bothered by the officer's investigation before citation and utilized the "clear and convincing" standard which governs consent after an illegal detention. Court found that officer was required to correct Villanueva's misconception.

Search of car -- plain view State v. Ross, 209 So. 3d 606 (Fla. 2d DCA 2016)

Officer testifies that he saw crack cocaine through open window of car to be towed. Trial court found suspect that the window was open and that officer observed this, suppressing the crack found in the car. Reversed. Trial court must rely on evidence in record and not suspicion that "something must have happened" after arrest of Def on other charges.

Citizen Encounter or Detention N.S. v. State, 227 So. 3d 132 (Fla. 4th DCA 2017) .................................................49

Officer's command to "stop" and clearly informing juvenile he was not free to leave sufficient to show this was detention. No reasonable suspicion to stop, subsequent patdown that resulted in discovery of marijuana in juvenile's pocket also illegal.

Invalid consent based upon illegals detention F.C. v. State, 205 So. 3d 831 (Fla. 2d DCA 2016)

Officers approached 12 year old Respondent and his playmate and for no reason, asked to search them. The children testified that the officers did this many times and when they had refused in the past, the officers said they looked suspicious and searched anyway. Court finds consent was not voluntary and notes that like Miranda waivers, age, experience and background must be considered and that the burden is a heavier on to show consent when the suspect is a juvenile.

Warrantless Entry Daniels v. State, 208 So. 3d 1223 (Fla. 2d DCA 2017)

Officers arrest Daniels on misdemeanor out-of-county warrant while he is in car in carport. While looking for others on property, officer walks around to other side of house, looks in window and sees marijuana and indicia of firearms. This information supported issuance of warrant. Denial of motion to suppress overturned. While a protective sweep is allowed of premises, this is only to protect the safety of the police officers or others, based upon a reasonable articulable suspicion that such a sweep is necessary. Here, there was no competent, substantial evidence anyone else was on the premises, or that the safety of the officers was in question.

Citizen Encounter or Detention State v. Beans, 215 So. 3d 172 (Fla. 5th DCA 2017) ..............................................

Officers respond to noise complaint at Def apt. Def opened door but when he saw officers slammed door shut -- but not before a cloud of M smoke escapes. Def refuses to open up. Officers wait in parking lot, pondering whether to get a warrant. Officers see Def leave in his car and follow. When officers see Def in drive- thru lane of restaurant, they approach from behind. State concedes no Reas. Susp. Citizen encounter or Detention? Detention. Suppression of concealed firearm observed in car upheld.

Standing Foley v. State, 188 So. 3d 930 (Fla. 5th DCA 2016)

Passenger has standing to contest fruits of search of car he does not own, based upon illegal length of detention.

Good faith reliance on Warrant

Police cannot rely on a warrant in good faith where an objectively reasonable officer would have known that the affidavit was insufficient to establish probably cause for the search. Gonzales v state and mesa v state. No good faith reliance if evidence of omissions with intent to deceive or with reckless disregard for the truth. Good faith may exist. Where there is no evidence of bad faith nor evidence adduced to seablish bad faith on the part of the police. Requires a finding by the trial court that there was "deliberate, reckless or grossly negligent conduct" otherwise good faith reliance could apply.

Protective sweep State v. McRae, 194 So. 3d 524 (Fla. 1st DCA 2016)

Police knock on door of motel room. Upon answering, McRae is immediately IDed as gunperson in robbery. Officers grab McRae, conduct sweep of the motel room. McRae then interviewed, gives incriminating evidence. Moved to suppress statements as product of illegal entry and search. Court reversed finding of lower court that police could not enter. Court found probable cause for arrest at the door and protective sweep okay.

Warrantless Entry Collado v. State, 208 So. 3d 802 (Fla. 3d DCA 2016)

Police respond to hostage situation. 911 operator could hear hostage screaming. After unsuccessfully attempting to make contact officers knock on back door. Def opens back door and steps out wearing only boxer shorts. Officers hear a female screaming for help. Entry results in discovery of drugs and ammunition. Warrantless entry upheld due to emergency situation. See, Seibert v. State, 923 So.2d 460 (Fla. 2006).

Blood Draw State v. Liles, 191 So. 3d 484 (Fla. 5th DCA 2016)

State made no effort to prove exigent circumstances to allow warrantless blood draw. But Court reverses suppression as the officers were entitled to good faith reliance on law pre-McNeely.

Examining an Affidavit

The trial court must look at TOTC. Elements of PC may be established from the totality of the affidavit as a whole

PC

To establish PC, need two elements (1) a PARTICULAR PERSONS committed a crime AND 2) there exists a fair//likely probability of finding relevant evidence of criminality at the place to be searched.

Traffic stop objective test

To lawfully stop a vehicle, a law enforcement officer must have probable cause for a civil traffic violation. The constitutional validity of a traffic stop depends on purely objective criteria. Whren v. United States, 517 U.S. 806, 810 (1996). The objective test "asks only whether any probable cause for the stop existed," making the subjective knowledge, motivation, or intention of the individual officer irrelevant. Holland v. State, 696 So.2d 757, 759 (Fla.1997).

NExus Element

To satisfy the nexus element, the affidavit must establish the particular TIME when the illegal activity that is the subject of the warrant was observed . This can also be established from the affidavit as a while.

Detention of passenger during traffic stop Presley v. State, 227 So. 3d 95 (Fla. 2017).

Traffic stop in high crime area. Officer questions Def passenger who was instructed not to leave. In conversation, Def tells officer he had been drinking. Officer runs Def, finds he is on probation, and that one f the conditions of probation was "no alcohol." Officer arrests and finds cocaine. Settling conflict among the Districts, the Court reviewed Pennsylvania v. Mimms, 98 S.Ct. 330 (1977)(officer may order driver from car during traffic stop) and Maryland v. Wilson, 117 S.Ct. 882 (1997)(officer may order passenger from car during traffic stop too) and reasoned that the passenger is effectively detained by the traffic stop. Any additional intrusion by forcing the passenger to wait is di minimus and outweighed by the legitimate interest in officer safety. Cases where this issue was certified and which include good analysis: Lopez v. State, 225 So. 3d 330 (Fla 3d DCA 2017); Aguiar v. State, 199 So.3d 920 (Fla. 5th DCA 2016)(en banc).

Traffic stop Gallardo v. State, 204 So. 3d 979 (Fla. 5th DCA 2016)

Traffic stop may be based upon officers' visual estimation of speed. State v. Allen, 978 So.2d 254 (Fla 2d DCA 20080; Young v. State, 33 So.3d 151 (Fla. 4th DCA 2010); State v. Joy, 637 So.2d 946 (Fla. 3d DCA 1994).

Search Warrants

Trial court reuquired to examine the affidavit to determine if the issuing magistate had a substainal basis to conclude that PC existed.

Warrantless Entry State v. Johnson, 208 So. 3d 843 (Fla. 1st DCA 2017)

Warrantless entry into car to retrieve Def's cash resulted in observation of cocaine. Seizure of cocaine upheld.

Warrantless arrest for misdemeanor Weaver v. State, 233 So. 3d 501 (Fla. 2d DCA 2017)

Weaver arrested for "tag not assigned". Weaver told officer her friend had put tag on car. Court finds arrest illegal. S. 320.261 (Tag not assigned) punishes the act of attachment and the person who attaches. Officer had no PC that Weaver violated the statute.

Annonymous Tips

When affidavits contain an anonymous tip, the affidavits must be either 1) evidence of tipster's veracity OR 2) sufficient independent corroborating evidence.

Knock and Talk — "No Soliciting" Sign State v. Crowley, 232 So. 3d 473 (Fla. 1st DCA 2017)

While venturing off the front porch can have Four Amendment implications, the front porch is traditionally open to solicitors, the public, and law enforcement. The presence of a "No Soliciting" sign does not change that equation.

Traffic stop English v. State, 191 So. 3d 448 (Fla. 2016)

Wire hanging down over license plate and obscuring one letter of plate (most of the time) found to be a violation of s. 316.605(1) justifying traffic stop. The statute is violated even if the obscuring material is external to the license plate.