Think about it, friends.

[straightshooter1]

One of the interesting things to me (probably only because I am a lawyer) is the difference between laws of different states.

For example, to frisk (pat down your clothing) in Florida the officer must have a (1) valid stop and then (2) probable cause to believe the person maybe armed with a dangerous weapon.

The officer can get the "probable cause" from seeing a "bulge" under the person's shirt or pants (yeah, I know...) or from the person saying he is armed or from another person.

If there is a valid stop, you MUST truthfully identify yourself and lying about your identity is a misdemeanor.

If there is no "stop," or if it is just a "citizen contact," then lying about your name is not a crime.

User is generally right about probable cause-if the cop has it, you are about to be nose down, fanny up and handcuffed. I'd shut up and ask for a lawyer.

BUT-if we are dealing with some issue of carrying or possession of a gun, for example, and I knew that the cop was mistaken about the LAW-NOT THE FACTS-I would try to get him to understand.

Example: In Florida, a gun in a console is legal without a permit, yet that is because of Appellate Case Law and is NOT in the Statute. Asking him to confirm the legality by calling the State Attorney's Office would seem to be wise since, if he does, I don't get to kiss the pavement. That they will and do call for such information (at least here) is based on my experience as a Prosecutor answering such calls and by the fact that we have a felony division of lawyers (7) on duty during working hours and three lawyers available after hours and on weekends and holidays to field such questions.

But, that's here. We have been blessed with a stable State Attorney's Office here, having only had two State Attorneys since the late 60s and only once has anyone ever run against the incumbent in an election. We have a good relationship with the law enforcement agencies though we do bump heads over cases from time to time (it ought to be that way-a prosecutor should never be a rubber stamp for the police).

Different jurisdictions, different states, different laws, experiences and results.

Bob

 

[boomstick]

One of the interesting things to me (probably only because I am a lawyer) is the difference between laws of different states.

For example, to frisk (pat down your clothing) in Florida the officer must have a (1) valid stop and then (2) probable cause to believe the person maybe armed with a dangerous weapon.

Since when does Florida require probable cause for a Terry stop and/or a Terry search?

BUT-if we are dealing with some issue of carrying or possession of a gun, for example, and I knew that the cop was mistaken about the LAW-NOT THE FACTS-I would try to get him to understand.

Assuming you were not mistaken about the law and the cop was correct.....

 

[straightshooter1]

Boomstick-I didn't say PC to stop, at least I can't find where I said that. It requires a founded suspicion.

As to the probable cause for the Terry pat down, Florida Statute 901.151 (5) uses those very words. It has been in effect since 1939, modified in 1970 and, in 1997 modified only to make it gender-neutral.

Case law tells us what makes the PC for the pat down, and I simply stated it, a bulge for example is sufficient to meet the statute's requirements.

And, without a doubt, if we are talking about Florida's law on possessing or carrying a gun, I would be not mistaken about what the law says. But if you mean someone else who is stopped and dealing with those issues, then you are correct-he/she could be wrong and the officer correct.

One example is the Swift case, way back in 1985. Officers stopped Swift and found, among other violations, a gun in his console. The Statute, dealing with carrying and possessing firearms had been in effect since April of 1982 and there were several cases during that period saying the console was, in effect, the box with a lid that had to be moved or removed, to access the firearm that the Statute referred to. The City of Miami paid Swift $50,000 for their making that arrest.

Frankly, I don't like that decision. We give Officer Friendly a book with the Statutes in it, but, unless an instructor at the Academy or during in-service training happened to choose that topic to discuss, the Officer had no way to know that particular appellate case law.

Bob

 

[boomstick]

As far as I know, Florida requires REASONABLE SUSPICION for a Terry stop and/or search. Just like every other state. RS is a much less stringent standard than probable cause.

You do NOT need probable cause for a Terry search (pat down).

 

[user]

Originally posted by boomstick:

A person does NOT have to identify themself to the police (or carry identification, for that matter.)

For purposes of administrative law (if that's the right word), besides driving, if you're operating certain businesses regulated by law enforcement (cabs, pawn shops, bars, junk yards, etc..) you are required by law to ID yourself when asked, even with no reasonable suspicion. ...
...Personally, I've never had to twist someone's words to use their statement against them. Quite the contrary, in most cases, the twisting and distorting is done by the defendant and/or his attorney trying to undo what his client has already done....
...I WISH more people would avail themselves of their right to remain silent. Especially on the ride to the station while they're in cuffs in the back seat.

My observation about a simple ID stop is based on the powers of a constable at common law. Not all states are common law states, and every state may have a different statute that modifies the common law.

As to the twisting of words and phrases (which I might have called, "mischaracterization"), I was assuming cops who are less than fully professional in their demeanor. Like anything else, some cops are really good, some are really bad, and most are average. I tell my clients to assume the worst, unless they happen to know whom they're dealing with. You can't tell just by looking, which cops are reasonable and which aren't. And often the worst ones are the best at pretending they're really good.

I advise clients never, ever, try to educate a cop on what the law is - they get used to using legal words and phrases and actually do know the stuff better than most of my clients ever will.

And as to the chatty cathy in the back seat, I'll bet you wish they didn't pee and puke back there, too.

If there were no crime, my livelihood would be seriously impacted. And if people didn't spout off about all sorts of stuff when talking to cops, my work load would be off by about a third. Lots of what I do is just damage control, and trying to see that people get fairness in court before they're sentenced. I freely tell people how to structure their lives before they get into trouble, knowing perfectly well that they're not going to take my advice. That's a good part of why I'm making money.

 

[ttpete]

User, thanks for your observations regarding police stops. They've gone a long way towards clearing the air. I have a few questions, though. First, would it be wise to ask the officer what one's status is, in other words, whether one is free to leave or not? Second, if one is detained, what is the appropriate amount of time one can be so detained incommunicado without making a formal arrest and affording one the opportunity to obtain legal representation? I'm speaking to a habeas corpus concern here. Detroit police are pretty famous for holding "suspects" in precinct lockups as detainees without formally arresting them, and not allowing them to contact family or counsel.

Our state organization, Michigan Coalition For Responsible Gun Owners, has several members in my area who are also attorneys who specialize in firearms related cases, and I keep their numbers handy. Michigan has a state preemption law regarding firearms regulation, and the MCRGO has actually filed lawsuits against our county clerk and sheriff for attempting to subvert state firearms laws and delay the issuance of carry permits.

 

[straightshooter1]

Okay boomstick-did you read the statute I gave you? It says "probable cause." Remember, I said this was Florida only. I can't change what the law is here.

Other states, other laws, rules and procedures.

Simply read the statute and see if you are right. Also, the courts have said what it takes to have that P/C under our Statute, and I stated only what the courts say.

Bob

 

[straightshooter1]

User, I agree with you about trying to educate the cops on the law. If one is in a jurisdiction where there are Prosecutors who are always available to the officers and will check out the law, though, I don't see any problem with asking Officer Friendly to call them.

If, on the other hand, the cop is not interested in finding out if he/she is right or wrong, then keeping one's mouth shut in that situation is probably the best course of action.

Here, we still, from time to time, (like maybe every 6 months to a year) have some officer who was asleep or absent when "Weapons" was presented in the Academy and who arrests someone for having a firearm in the glove compartment. That has been legal in case law since the late 20s (and maybe earlier) and codified in Chapter 790 (the firearms laws) since April, 1982.

No big deal I suppose (unless you are the person arrested who has to go nose down, etc. on the pavement, see his car towed away, bond out of jail or wait to see a judge the next day) because the State Attorney will "fix" it by filing a "No Information" (declination to prosecute) when the officer presents the case ten days to two weeks after the arrest.

I try to work the "where a firearm can be lawfully carried" into every class I teach at the Academy regardless of the type of class to keep this from happening to anyone else.

I am always amazed by those officers who simply fail to read the statutes which are provided to them so they will be aware of the laws of our State.

Bob

 

[boomstick]

Okay boomstick-did you read the statute I gave you? It says "probable cause." Remember, I said this was Florida only. I can't change what the law is here.

Other states, other laws, rules and procedures.

Simply read the statute and see if you are right. Also, the courts have said what it takes to have that P/C under our Statute, and I stated only what the courts say.

Bob

It appears to me that the statute's implied definition of probable cause in the Stop and Frisk statute is more like "reasonable suspicion". There's plenty of case law from FL in the last 20 years that references reasonable suspicion as the minimum standard for a Terry stop or search. Can you show me any cases in the last 20 years in FL where a Terry stop or search was tossed because the officer "only" had reasonable suspicion? If you stop someone based on classic Terry reasonable suspicion find a gun on him like they did with reasonable suspicion in Terry, I doubt that a Florida court would toss the gun because the officer didn't have "probable cause". Or would they?

If you're telling people in FL that the police can't search them for weapons if they only have reasonable suspicion, I believe you're giving them bad advice. From your posts, I infered that you're an asst. prosecutor. Is that true? If so, do you kick cases where the officers had reasonable suspicion to stop someone but only reasonable suspicion and not probable cause for a Terry-type search for weapons?

An example, from the Florida Court of Appeals. I'm just pasting one part, but at no point did the court of apeals note that the search was bad because statutorily, probable cause, as opposed to reasonable suspicion was required for the search. So I still contend that the police, even in Florida, merely need reasonable suspicion for a Terry search for weapons.

DISTRICT COURT OF APPEAL OF THE STATE OF FLORIDA
FOURTH DISTRICT
January Term 2006
DANNY SMITH,
Appellant,
v.
STATE OF FLORIDA,
Appellee.
No. 4D04-3709
[April 12, 2006]
WARNER, J.
The appellant, Danny Smith, timely appeals his conviction and sentence for possession of cocaine and drug paraphernalia. The appellant contends that the trial court erred in denying his motion to suppress drugs and paraphernalia found when the police officer searched him. Because we conclude that the officer witnessed an assault perpetrated by the defendant who was armed with a stick, there was reasonable suspicion that appellant was armed and the officer’s weapons pat-down of appellant was proper. Thus, we affirm the trial court’s ruling.

I'm not sure why the search wasn't "incident to arrest" after the officer witnessed the assault, but the Florida court clearly references reasonable suspicion for the weapons search.

 

[straightshooter1]

I'm not giving bad advice. I am telling them (and you) what the statute says. What you don't seem willing to understand is that the cases tell us what that P/C requires.

If one has a valid stop, for example a traffic stop, and the driver exits the car, and the officer sees a bulge in the right front pocket of the driver's pants, he has the P/C the statute requires. That's not much, is it? Yet that is enough to satisfy the statute.

Yes, our courts have, from time to time, used the term you reference. But, the Florida Supreme Court used the P/C word (like the statute).

Yes, I was a prosecutor, retired a year+ ago. Was a police officer before law school. No, I don't (didn't) kick cases if the Officer followed the law. In fact, our policy was always that IF we had any legitimate argument we could make in a case involving a search or seizure, we would file the case and litigate it.

What got cases "kicked" was when an officer made a valid stop, then patted the person down for "officer safety and discovered something illegal he had no valid idea was there." Or, saw the bulge I referenced, patted the bulge and found it not to be a weapon, then continued to pat down the driver and found, for example, cocaine. Or, didn't have a valid stop, didn't develop any P/C (you can insert your term here) and patted someone down and found something like cocaine, a gun, etc. Or, rather than patting down the clothing, simply reached into the pocket or under the shirt of the driver before the Officer knew if whatever he saw could be a weapon. In those instances, under the facts I gave, we had no legitimate argument, so didn't file the cases.

BTW, both the valid stop and P/C to pat down can arise at the same time but that's not what we were discussing.

boomstick, all this started simply because I quoted what our Statute says. I'd like to think, if you are an officer, that you follow those statutes. Doesn't take much to satisfy the P/C part of the Statute and I suspect you were confusing it with the P/C necessary to search or arrest or obtain a warrant. I told you the courts have told us what satisfies the statute dealing with 901.151 (5).

I suspect we are arguing over nothing other than my use of the term our Statute uses.

Bob

 

[boomstick]

If one has a valid stop, for example a traffic stop, and the driver exits the car, and the officer sees a bulge in the right front pocket of the driver's pants, he has the P/C the statute requires. That's not much, is it? Yet that is enough to satisfy the statute.

A "bulge" is not probable cause to believe someone is armed. It's reasonable suspicion if based on experience, the officer associates that type of "bulge" with a weapon.

Of course you can't search someone for "officer safety" without reasonable suspicion. There is no "officer safety" exception to the search warrant rule. Many do, and it's a bad search.

I suspect we are arguing over nothing other than my use of the term our Statute uses.

I'm arguing about the term the statute uses. There's a huge difference between probable cause and reasonable suspicion. I think your own courts agree when they use terms like "reasonable suspicion" when the statute says "probable cause".

I can't find the Florida Supreme Court's decision on the FL V. JL case, just the US Supreme Court case. Do you have the Florida SC decision handy? If so, does THAT one reference probable cause or reasonable suspicion for the frisk of JL?? I know what the circumstances were for the stop, but I'm wondering if they referenced the FL statute and whether they said "reasonable suspicion" relative to the Terry search.

I think I found it. As you know, the JL case was about an uncorroborated anonymous tip being not good enough for a Terry stop. However, it also uses the term "reasonable suspicion" with regard to what is needed for a frisk, too, I think. It doesn't reference the Florida stop and frisk statue. I understand what the statute says, but I think it's a "bad" statute. I don't think you throw cases out where the stop was good based on reasonable suspicion, but the search was bad if only reasonable suspicion and not probable cause was developed. Surely you agree that there's a big difference between reasonable suspicion and probable cause. The whole point of a Terry search is for officer safety. I don't think your courts (or legislators) meant for an officer to be unable to do a Terry search if they "only" had reasonable suspicion, do you? I hope not. I certainly don't think a mere bulge where a holster might be equals "probable cause" to believe someone is armed, do you?

 

[straightshooter1]

Is JL the one where the police received a phone call from someone who said it was Momma and Junior was carrying a gun?

Bob

Found it! This was the one where the anonymous tipster called in, said a kid w/a particular shirt had a gun. It's an anonymous tip case.

I googled "JL V. FLORIDA" and got it, but they didn't give the So.2d cite on "FindLaw."

Bob

 

[boomstick]

Yeah, I found the FL Supreme Court decision, I think, and posted it in the earlier post. Yes, that was the one about an uncorroborated anonymous tip being not good enough for reasonable suspicion. The juvenile at the bus stop case.

Theres a few other cases like that involving drugs where the tip was anonymous, but the cops corroborated the information after getting it. In those cases, it was a good stop. Not so with little JL.

I would be interested in knowing (maybe straightshooter knows) of any FL cases were a Terry search was thrown out because the cops had reasonable suspicion for a stop and reasonable suspicion to believe that the subject was armed and potentially dangerous, but NOT probable cause. It seems like the statute, or practice, is to use the two terms pretty darn close to interchangably, and I wonder why that is.

 

[straightshooter1]

No cases I am aware of. Yes, they do tend to use them like you say. I think it doesn't matter how the officer thinks of it, if he/she meets that "P/C" like the bulge (and yes, I realize that's based on the officer's knowledge and experience) it will fly.

Sometimes the courts are weird. It took 30 years to get rid of two DCA cases that kept getting cited in Miranda-type cases that stood for the proposition that the "zone of suspicion" had narrowed to this particular person, so he was entitled to have his Miranda Rights read even though he was not in custody (Escobedo's holding which was effectively overruled by Miranda in '66). Then there's the Second District case where the author of the opinion says the Carroll Doctrine requires exigent circumstances (though the US Supremes clearly have said it does not).

Bob

 

[boomstick]

Then there's the Second District case where the author of the opinion says the Carroll Doctrine requires exigent circumstances (though the US Supremes clearly have said it does not).

Not sure what you mean on this one. I thought that even from the beginning, they considered the fact that a car was involved as an exigent circumstance in and of itself?

 

[straightshooter1]

That's one way to put it, and the US Supremes say no other exigent circumstance needed. Doesn't stop some judges from saying something that isn't correct and forcing us to litigate it. fortunately, Florida passed the "lock-step provision" that makes our courts decide S&S cases in conformity with the US Supreme Court.

In that case, the 2d DCA judge was a former trial judge in our circuit and a good one. He just got confused (or, perhaps, his clerk did) and said something that was wrong, but causes problems sometimes.

Bob

 

[user]

Originally posted by ttpete:
... First, would it be wise to ask the officer what one's status is, in other words, whether one is free to leave or not? Second, if one is detained, what is the appropriate amount of time one can be so detained incommunicado without making a formal arrest and affording one the opportunity to obtain legal representation?....

As to the first question, my answer is an unqualified ABSOLUTELY!

As to the second, that varies by state, but the general rule seems to be that 48 hours is the max., as I understand it. There may be some due process decisions regarding the magic of that number, but I haven't researched it.

 

[boomstick]

If you're arrested, you have the right to be brought before a judge or magistrate in a "reasonable" period of time. It is presumed that 48 hours or less is reasonable. If you want to contend that you weren't brought before a judge or magistrate to be advised of what you're being held for in a reasonable time, and you've been in custody less than 48 hours, YOU have the burden of proof to show that the time period wasn't reasonable. If you've been in custody for MORE than 48 hours, the government has the burden to show that it was a reasonable length of time.

 

[ttpete]

Originally posted by boomstick:
If you're arrested, you have the right to be brought before a judge or magistrate in a "reasonable" period of time. It is presumed that 48 hours or less is reasonable. If you want to contend that you weren't brought before a judge or magistrate to be advised of what you're being held for in a reasonable time, and you've been in custody less than 48 hours, YOU have the burden of proof to show that the time period wasn't reasonable. If you've been in custody for MORE than 48 hours, the government has the burden to show that it was a reasonable length of time.

But suppose your attorney obtains a habeas writ? Don't the police then have to bring you to court forthwith and show cause to hold you without having charged you? My understanding is that this can be done at any time, and that it is a constitutional right.

 

[boomstick]

But suppose your attorney obtains a habeas writ? Don't the police then have to bring you to court forthwith and show cause to hold you without having charged you? My understanding is that this can be done at any time, and that it is a constitutional right.

Yes, I believe they can do that, but I'm not 100% on the particulars. I recall an attorney who had a bunch of blank, pre-signed writs for his clients. I can't remember if he or the judge who handed them out ever got into any trouble. In 23+ years, I only recall people getting out on writs maybe 3 or 4 times while I was working. Usually attorneys and judges don't want to get up at 3:00am on Christmas to get someone out of jail. I think that sort of thing is reserved for those with the big bucks.

Back in the Purple Gang days, the cops would often put a suspect on "the merry go round" or some euphamism like that to prevent their lawyers from catching up to them with a writ. They would send them from precinct to precinct to keep him in custody without charges. I think the use of writs has tapered off from those days except in rare cases. They were probably used a lot more before the "48-hour rule" came about.