College Campus Crimes

Court Overturns Florida Gun Charge Conviction Where the Police Search Exceeded the Scope of Consent

If a person is suspected of a crime, he or she nonetheless has rights under the law, including the right to be free from unreasonable search and seizure. Even if a person consents to a search, any evidence obtained during the search may be tainted if the consent was not properly obtained or if the search exceeded the scope of the consent.

A Florida district court of appeals recently discharged a defendant’s conviction based on a firearm found during a search, on the grounds that the state could not prove the weapon was found within the areas the defendant gave the police permission to search. If you were charged with a crime after the police searched your home, you should consult a knowledgeable Clearwater criminal defense attorney to discuss whether you may be able to preclude evidence found during the search.

Facts Regarding the Search of the Defendant’s Property

Allegedly, the police responded to a call that shots had been fired at the defendant’s apartment. Upon arriving at the scene, the police did an initial security sweep, in which they found shell casings and smelled gunpowder. The police escorted the defendant’s girlfriend and children out of the home, and the area was sealed until detectives arrived to conduct a shooting investigation. A detective arrived shortly thereafter and entered the home to secure the scene and begin the investigation. He later testified that this entry was not part of the protective sweep.

Reportedly, a second detective then approached the defendant to obtain consent to search the home. The defendant initially refused, but ultimately signed the consent form. He verbally indicated the consent was only for the front bedroom and living room and wrote the words “just for” on the form. At some point during the investigation, an assault rifle was found under the bed in the master bedroom. The defendant was charged with possession of a firearm as a felon. He filed a motion to suppress the evidence of the firearm, arguing that the initial unauthorized search by the detective tainted the second search and that his consent was not voluntarily given. The trial court denied his motion and the defendant was convicted. Following his conviction, he appealed.

Exigent Emergency Permitting Unauthorized Search

An unauthorized search is permitted in circumstances where there is an emergency that requires the police to assist or aid individuals. Here, the court found that the initial sweep and securing of the home was proper due to the exigent circumstances presented by a possible shooting, but that after the initial sweep and securing of the home, the exigent circumstances ended. As such, the police needed either a warrant or consent to further search the home.

Determining if Consent was Lawfully Obtained

Under Florida law, the State bears the burden of proving consent was validly obtained. Here, the court noted that the detective’s search after the initial sweep violated the Fourth Amendment and constituted illegal police activity. Consent obtained after illegal police activity will be presumed to be involuntary unless there is clear and convincing proof of a break in the chain of illegality that is sufficient to dissipate the taint of the illegal activity. The factors weighing in whether consent is invalid are the time elapsed between the illegal activity, whether there are intervening circumstances and the purpose of the illegal conduct.

In the subject case, the court found that the illegal activity was not flagrant and the illegal search was not used to obtain consent. As such, the State overcame the rebuttable presumption the consent was invalid. The court also found, based on the circumstances surrounding the consent, that the consent was voluntarily obtained. The court held, however, that the scope of the search exceeded the consent given. Specifically, the defendant only consented to the search of two rooms and the gun was found in a third room. As such, the court found that the trial court improperly denied his motion to suppress, and reversed the conviction and remanded for discharge.

Meet with an Experienced Criminal Defense Attorney in Clearwater

If you are a Clearwater resident charged with a crime, you should meet with an experienced criminal defense attorney to discuss the facts of your case.  William Hanlon of Hanlon Law is a Clearwater criminal defense attorney who will fight vigorously on your behalf to help you retain your rights. He can be contacted at 727-897-5413 or through the online form to set up a conference.

More Blog Posts:

Florida Felon Resentenced After Error, November 5, 2018, Clearwater and St. Petersburg Criminal Lawyer Blog

Concurrent vs. Consecutive Prison Time in Florida Criminal Cases, May 15, 2018, Clearwater and St. Petersburg Criminal Lawyer Blog

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