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Crack Discovered as a Result of Illegal Florida Search and Seizure

criminal lawIn a recent appellate decision arising out of a Broward County court decision, the defendant appealed his withholding of adjudication and sentence for one count of possession of cocaine after a plea. The appellate court considered whether the cocaine was found as a result of an Florida illegal search and seizure.

The case arose when the police discovered crack cocaine in the defendant’s food container. Early one morning, two police officers were patrolling an area known for being a high crime area. An officer wearing a vest with the word “Sheriff” written on it was driving an unmarked SUV with the windows rolled down. As the police officer started to turn at an intersection, he saw two men standing at the corner of it. One of the men was holding a fork and a food container.

The defendant turned and looked up with a startled expression. He dropped his fork, as well as a yellow item that he tried to push down into the food container. The officer recognized that the item was crack. The police officer stopped. He took the container, which held grits. The items were pulled out of the grits and tested and found to be crack.

When cross-examined, the defense attorney tried to find out the officer’s distance from the defendant at the time the item was dropped into the grits. The attorney moved around the courtroom to try to gauge the distance. The officer wouldn’t estimate how far he was. He refused to approximate. On the record the court described the crack as a white, waxy square that looked like butter. The court found that the officer wasn’t credible on claiming that he was able to identify the item dropped as crack, regardless of what the officer’s training was. The judge noted that from the size of the butter-like item, he didn’t believe anybody in the back of the courtroom could recognize that what was perceived as a white square dropping into a takeout plate was crack.

Even so, the court denied the defense motion to suppress, concluding that the standard wasn’t whether the nature of the crack was immediately clear. The issue instead was whether the circumstances led the officers to reasonably believe the item was incriminating. The court pointed out that the defendant looked startled, was in a high crime area, and reacted to the officer’s presence by dropping his fork and the item, and trying to push the item down. The judge concluded this was enough to give the officer a reasonable belief that what was being dropped was incriminating.

The defendant entered a plea of no contest, but reserved the right to appeal the results of the motion to suppress. The court withheld adjudication and sentenced him to drug offender probation.

The appellate court explained that under the plain view doctrine, items that are in plain view can be seized without a warrant if an officer can immediately apprehend their incriminating nature. The officer needs to have probable cause a crime has been committed or is about to be committed.

The appellate court reasoned that since the lower court found it didn’t believe the officer immediately identified the item as cocaine based on the visual observation, and all the lower court relied on was the defendant’s movements, the lower court should have granted the motion to suppress. The defendant’s movements were not sufficient to provide the officer with reasonable suspicion to believe the item was contraband. The ruling was reversed.

The Hoffman Firm represents clients accused of drug crimes in communities all over the greater Broward County area. Our firm offers a free, confidential consultation that will allow our lawyer to review your case and help you understand all of your legal options.

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