Jacksonville Criminal Defense Law Firm

Not without a search warrant, it isn’t legal for the police to search your phone. As a Jacksonville criminal lawyer, I fight illegal searches by the police. The Supreme Court of the State of Florida recently ruled that the police cannot access the personal data on your cell phone without a search warrant. In Smallwood v. Florida, the police recovered Cedric Smallwood’s cell phone when they arrested him for the robbery of a convenience store in Jacksonville. The phone was in Smallwood’s pocket when he was arrested. The police searched the photographs on Smallwood’s phone (without his consent) and found several incriminating photos (one of them showed the gun he used in the robbery next to a stack of fanned out money four days after the robbery – not too smart on Mr. Smallwood’s part). This and other photographs were introduced against Mr. Smallwood at the time of his trial. He was convicted by a jury and sentenced to 50 years in prison – ouch!

Smallwood appealed his conviction on the grounds that the police had no right to search the data on his cell phone without a search warrant and then use those photographs against him at his trial. The Florida Supreme Court agreed. The Court found that Smallwood had a reasonable expectation of privacy in the digital images in his cell phone and that the police invaded his privacy. The court reasoned that “a modern day cell phone is a computer” and contains vast amounts of personal information and data. The Fourth Amendment of the Constitution of the United States prohibits unreasonable searches and seizures; the Court ruled that the warrantless search of Smallwood’s cell phone was an unreasonable search and seizure and overturned his conviction.

This issue has arisen in many States and has now gone as far as the United States Supreme Court, (Riley v. California), which ruled, on June 25, 2014, that a cell phone cannot be “searched” or accessed by the police without a search warrant. What was not discussed in Mr. Smallwood’s case was the issue of consent. What if the police had simply asked Smallwood, at the time of his arrest, if he would give them permission to search the contents of his phone? And what if he said yes?

Lesson Learned:
If the cops take your cell phone from you when you are arrested in Florida, they cannot search the contents without a search warrant. And if the police ask for your consent to search your phone? Or ask for your phone’s password to unlock it? Just Say No. No matter what the police say, make them go to court and get a valid search warrant from a Judge. Because if you give them your consent, the cops just might be able to get away with searching the contents of your cell phone, which might give them the evidence they need to convict you of a crime. The Law Office of Richard Landes has defended hundreds of people charged with theft and robbery crimes in the Jacksonville, St. Johns, Clay and Nassau County areas. Theft and robbery crimes lawyer The Law Office of Richard Landes, 904-343-4556, always offers a free, no obligation phone consultation.

No, they cannot search your car for no reason. It is against the law for the police to use a ‘pretext’ (a made up reason) to pull you over and then use that pretext (whether it be a broken taillight, a cracked windshield, a failure to signal a lane change or speeding) to search your car for contraband like drugs and guns. But of course, this happens every day on our Florida highways. As a Jacksonville criminal attorney, I have seen cops come up with some very original reasons for why they pulled over certain motorists. The cops know that drugs and guns are routinely transported on the Florida interstates. But that doesn’t mean they’re allowed to pull you over based on a hunch. They have to have a reason – probable cause of criminal activity – to initiate a full blown search. I recently represented a young man who was pulled over near the Georgia border in Nassau County because he had several chains hanging from his rearview mirror, supposedly “obstructing his view’ out the front windshield. He was even given a traffic ticket for this by the Nassau County Sheriff’s Office. That was the ‘pretext’ the cop was going to use to conduct a search of my client’s car. The real reason he was pulled over was that he was a young black man with long Rasta dreads driving a white Cadillac Escalade…in other words, Driving While Black. But the police aren’t allowed to profile this way, so instead, they came up with the nonsense reason that my client’s view out his front windshield was obstructed. They did this to justify the stop of my client’s car in the first place.

However, the Florida case of Gordon v. State says that it is unlawful for the police to justify a stop based on objects hanging from rearview mirrors (Gordon had air fresheners hanging from the rearview mirror of his Cadillac). Next, the police asked my client if they could search his car. This is where most people get into real trouble. The cop is standing over you, almost demanding that he be allowed to search your car. Most people say yes because they feel intimidated by the presence of one or more police officers and police cars behind them with flashing lights. The cops know this and exploit this fear. And they do this because, many times, the police can get around legal requirements by claiming that you ‘voluntarily consented’ to a search. Many people (foolishly) do voluntarily consent to having their cars searched, even when they know that drugs or guns might be recovered. Here, my client wisely did not consent to a search of his car. So what did the cops do? They told him that if he refused to give his consent, they would call a K-9 unit and have a drug sniffing dog come to the scene. And that’s exactly what they did.

The drug dog ‘alerted’ and the police searched my client’s car, recovering cocaine, marijuana, a large amount of cash and a scale. However, Florida law says that if a person has a valid driver’s license and registration, the police can only detain you for as long as it takes to write you a ticket for the violation they pulled you over for (broken taillight, cracked windshield, speeding, etc.), which is usually no longer than 15 minutes. If it takes a half hour or more for the K-9 unit to respond, then the stop is held to be illegal and nothing recovered from your car can be used against you in court. In my client’s case, it took about 40 minutes for the K-9 unit to respond, well past the time it took for the police to issue my client a traffic summons. Nonetheless, the police arrested my client and charged him with the possession and manufacture of controlled substances, which are very serious crimes. Here, I was able to point out to the prosecutor that the initial stop of my client’s car was improper and that the K-9 unit’s response time was too long. The case would never survive a motion to suppress the evidence. As a result, the prosecutor dismissed all the charges against my client and set him free.

Lesson Learned:
How a car is pulled over and then searched by the police must be scrutinized and analyzed very closely by an experienced criminal defense lawyer. Here, it made the difference between years in prison and freedom. Never voluntarily consent to a search of your car, your home, your person or your mobile device, no matter how much pressure the police put on you. Remember, Just Say No. The Law Office of Richard Landes has defended hundreds of people involved in car stops and charged with drug crimes in the Jacksonville, St. Johns, Clay and Nassau County areas. Drug crimes lawyer The Law Office of Richard Landes, 904-343-4556 always offers a free, no obligation phone consultation.

Probably, yes, the police can question a child at school without a parent present. In J.D.B. v. North Carolina, a 13 year old, seventh grade student was accused of breaking into two homes. A few days after the break-ins, a school resource officer took the student from his classroom to a conference room in the school where two police officers and two school administrators questioned him for 30 minutes. The student, incredibly, was not given his Miranda warnings, nor was he given the opportunity to call his grandmother, who was his legal guardian, nor was he told he was free to leave the room if he wished. Eventually, he confessed to the crimes he was accused of, in part because he was scared after being threatened with juvenile detention. He was told to write out a statement, which he did. He was then permitted to leave and catch his bus home. Sometime thereafter, he was charged with breaking and entering and larceny. As a Jacksonville criminal defense attorney, I represent juveniles charged with crimes.

His lawyer moved to suppress his statements and the evidence the police got as a result of his statements because he had been interrogated in a custodial setting without being given his Miranda warnings. As such, his lawyer argued, his statements were illegally obtained and not voluntary. The Court denied the motion. This case went all the way to the United States Supreme Court, which ruled that the child’s age is a factor that should have been considered by the North Carolina Court. The Supreme Court did not, however, throw out his conviction.

Here in Florida, we have the case of D.B. v. State. With similar facts, the Florida court ruled that there was no bright line rule that would render a confession by a juvenile involuntary. Instead, the “totality of the circumstances” is to be considered by the court. What does this mean? It means that the courts need to look at a number of factors, such as:

1) “The manner in which the Miranda rights were administered, including any cajoling or trickery”

2) “The suspect’s age, experience, background and intelligence”

3) “The fact that the suspect’s parents were not contacted and the juvenile was not given the opportunity to consult with his or her parents before questioning’

4) “The fact that the questioning took place in the station house”, and

5) “The fact that the interrogators did not secure a written waiver of Miranda at the outset”

What does this all mean? Unfortunately, it means that your minor son or daughter can be brought to an office in his or her school by the friendly school police officer, whom they have been taught to trust, to be questioned about possible criminal conduct with the school principal or vice principal present or a teacher present. And while the court will consider that a minor’s parents were not present for any questioning, there is no rule that a parent needs to be present (or even contacted). And while the court will consider whether Miranda warnings were or were not given, there is no requirement that Miranda warnings be read to them.

Lesson Learned:
I recently represented a young man in middle school in Jacksonville accused of vandalizing an automobile with his friends at an apartment complex no where near school grounds. One of the boys confessed; the other did not. The boy who confessed was not read his Miranda warnings, nor were his parents contacted. It remains to be seen whether or not his case will survive a motion to suppress, but, in my experience, he will probably have to plead guilty to some criminal offense, which is a bad way to start out in life. We teach our children to trust the police and to speak to them freely. But these terrible court rulings and decisions teach us that, even where our children are concerned, the police cannot always be trusted. Instead, they will try to get a confession out of a young person in school, in a comfortable setting, without their parents present, even if the criminal offense didn’t happen on school grounds. Teach your children, when questioned by the police, to say nothing; instruct them to call you right away.

No, the police cannot search your home (without a search warrant) if you do not consent, even if your co-tenant (say, your wife or girlfriend) gives their consent, provided that you stay physically put on the premises. But the answer is yes, the police can search your home without a warrant if you leave the premises (even if the police arrest you! ) after having objected to the police searching your home if your co-tenant consents, and is the only one left at your home. This is a strange and difficult concept. As a Jacksonville criminal lawyer, I litigate search issues constantly. The following two Supreme Court cases will illustrate the point of how difficult the law is to understand in this area. Scott Randolph was arrested for drug possession after the police found cocaine in his home. The police did not have a search warrant to search Randolph’s home, but Randolph’s wife consented to the search. Randolph was also present at the time of the search and objected to the police’s request. The police searched anyway and recovered cocaine. At his trial, Randolph’s lawyer argued that the search was unconstitutional because Randolph never gave the police consent to search. The prosecutor argued that the wife’s consent was sufficient. The trial court ruled for the prosecution and Randolph was convicted. Randolph appealed his conviction and the Supreme Court sided with Randolph, holding that when two co-occupants are present and one consents to a search while the other refuses, the search is unconstitutional and a violation of the Fourth Amendment. The case was Georgia v. Randolph.

That was the law from 2005 until just recently, in 2014, when the Supreme Court changed the law somewhat in Fernandez v. California. Walter Fernandez robbed a man in Los Angeles. The man called 911, the police responded and were told that the suspect (Fernandez) was in a house nearby. The police went to the house, knocked on the door and a woman named Roxanne Rojas answered. The police requested entry to conduct a search, but Fernandez stepped forward and refused them access to the apartment. The police arrested Fernandez, took him into custody and asked Rojas if they could search the apartment. Rojas consented to the search (verbally and in writing) and the police found a knife and a gun. At his trial, Fernandez’ lawyer argued that the search of his home was unconstitutional, because he never gave the police consent (just like in Georgia v. Randolph.) Once again, the trial court ruled that the search was valid and Fernandez was convicted of robbery. Fernandez also appealed his conviction all the way to the Supreme Court, but this time, the Supreme Court ruled that the warantless search was lawful because a co-tenant consented.

How could this be? Here, the Court said that while warrantless searches are usually not permitted when two co-tenants are present and one objects, the search becomes reasonable and valid when the objecting co-tenant leaves and is no longer present. Here, the objecting co-tenant was arrested and therefore was no longer present. The court then held the search was reasonable and valid because the consenting tenant was present and had the authority to allow the police into her home to conduct a search.

Lesson Learned:
This is a truly awful and nonsensical Supreme Court decision. Because now, if you refuse to give the police permission to enter your home to conduct a warrantless search, all the police need to do is arrest you to get you out of the way. Then, you are no longer ‘on the premises’ and your co-tenant may consent and give the police the authority to search. This decision gives the police a great incentive to simply arrest the non-consenting tenant, on any charge, remove him from the premises, attempt to get the consent of a co-tenant and then conduct their search. I believe we will begin to see many fact patterns where this happens (the arrest of the non-consenting co-tenant). So if you’re confronted with this situation, what should you do? Continue to object to a warantless police search and don’t give your consent. Once again, Just Say No. Even if you’re arrested, your lawyer can argue ( like I plan on doing ) that the arrest was a pretext (an excuse) to get you out of the way so that they can try and get the consent to search from someone else living in the house. The Law Office of Richard Landes has represented hundreds of people with complicated search issues, all over the State of Florida, just like the one presented here. Call for a free, no obligation phone consultation.

Yes, you can get pulled over for drunk driving based on an anonymous tip. In Navarette v. California, the Supreme Court held that police officers may stop a driver to check whether he is drunk based solely on an anonymous call to a 911 dispatcher. I have seen it happen as a Jacksonville criminal defense attorney. One August afternoon in 2008, a 911 dispatcher in Humboldt County, California, got a call from a driver reporting that a specific silver Ford pickup truck, license number supplied, had driven her off the Pacific Coast Highway. Highway patrol officers found and trailed the pickup, which seemed to be driving normally. Nonetheless, they pulled the pickup over, supposedly to see whether the driver was drunk. He was not, but he was transporting 30 pounds of marijuana, which the officers later claimed was in plain smell.

The Fourth Amendment of the Constitution protects people from “unreasonable searches and seizures”. That means the cops can’t just stop any vehicle they want on the off chance that the driver is drunk or transporting contraband. Courts require a “reasonable suspicion” that the person being stopped has done something criminal, like speeding, for example. It used to be that the mere fact a police officer has gotten (or claims to have gotten) a tip did not create by itself “reasonable suspicion”. The tip had to have been from a known and credible source or, if anonymous, must itself contain “indicia of reliability” such as detailed information to suggest that the tipster has more than malice in mind.

Just what does “reasonable suspicion” now mean? Reasonable suspicion depends on “the factual and practical considerations of everyday life on which reasonable and prudent men, not legal technicians, act”, Justice Clarence Thomas wrote. In this case, he believed the decision to stop seemed reasonable. Why? Some 911 systems, Thomas wrote, have technological “features that allow for identifying and tracing callers, and thus provide some safeguards against making false reports with immunity.” So, since the 911 call may not be anonymous at all, “a reasonable officer could conclude that a false tipster would think twice before using such a system.”

Talk about conjecture and speculation. The Supreme Court seems to be saying that even though callers think they are reporting crimes anonymously, they ought to know that their calls can be traced and therefore would be dissuaded from making a false anonymous call. But false anonymous calls happen all the time. People are cut off in traffic, offended, and the next thing you know, they are calling 911 and reporting that the offending driver is drunk or speeding or the like. There are many documented examples of phony 911 calls, even made by the police themselves. In one case, a Montana police officer phoned in a phony tip claiming that the mayor was driving drunk; in a second, a North Carolina cop called a bar and told a drinker that there were ambulances at his house. The victim rushed to his car, and the cop had him arrested for DUI. In a third case, Michigan police phoned in phony tips that a driver had drugs and a gun, because they knew the driver was on supervised release and they hoped to find an excuse to re-arrest him. And these are the ones that came to light. Imagine how many false 911 calls are made reporting bogus crimes that no one ever finds out about.

Lesson Learned:
The law as it now stands states that an anonymous tip constitutes “reasonable suspicion” of drunk driving, without anything else. This is a horrible decision and is not what “reasonable suspicion” is all about. I must agree with Justice Antonin Scalia, who called this decision “a freedom-destroying cocktail.” If you see someone you don’t like at a bar or a party, you can now call 911 when they leave and anonymously report that your enemy is driving drunk, whether it’s true or not.

If you get pulled over in Louisiana and your blood alcohol level is lower than the cop who stopped you…you’re free to go.

No, they cannot police search your car because of it’s color. The Florida Supreme Court recently decided State v. Teamer (July 3, 2014), in which a person was charged with drug trafficking and possession after the vehicle he was driving was stopped by a deputy sheriff who noticed an inconsistency between the actual color of the vehicle Mr. Teamer was driving and the color indicated on the vehicle’s registration. How would a cop know this, you might ask, from his police cruiser? The police are told that, when sitting in traffic, or watching a vehicle stopped at a light, for example, to use their on-board computers to run random license plates to check if there are any outstanding warrants or other discrepancies. As a Jacksonville criminal lawyer, I can tell you that the Jacksonville Sheriff’s Office does this routinely.

The idea behind this policy is that people driving around with improper or outdated tags, lapsed insurance or other minor problems are more likely to have drugs or other contraband in their vehicles. Mr. Teamer was just such a person. He was observed driving a bright green Chevrolet. When the deputy ran Teamer’s license plate, he learned that the vehicle was registered as a blue Chevrolet. Based only on the color inconsistency, the cop pulled the car over to conduct a traffic stop. The cop was told that the car was recently painted, explaining the inconsistency. However, during the stop the deputy noticed “a strong smell of marijuana” and decided to search the vehicle. Marijuana, crack cocaine and about $1,100. in cash was recovered from Teamer.

Teamer’s lawyer filed a motion to suppress the results of the stop as products of an unlawful, warantless search. The trial court denied the motion to suppress (as they almost always do), stating that the car was pulled over only for an “investigatory stop” and that the odor of marijuana that the officer smelled during the stop gave him probable cause to conduct a search. After a jury trial, Teamer was convicted and sentenced to six years in prison. Teamer appealed.

The high court of Florida found that the stop of his car was a violation of Teamer’s Fourth Amendment right against unreasonable searches and seizures. It noted that the U.S. Supreme Court has “held that the police can stop and briefly detain a person for investigative purposes if the officer has a reasonable suspicion…that criminal activity may be afoot, even if the officer lacks probable cause”. A reasonable suspicion must be more than a hunch. Here, the government conceded that the failure to update a vehicle registration to reflect a new color is not a violation of Florida law. Thus, the sole basis for the stop (a different color car) was a non-criminal factor. The color discrepancy was not “inherently suspicious” or “unusual enough” or so “out of the ordinary” as to provide the officer with a reasonable suspicion of criminal activity. The court noted that if there were some other factor, other than just the changed color of the car, that might have given the officer reasonable suspicion to conduct the traffic stop. But with nothing more, it just wasn’t enough. The court set Teamer free.

Lesson Learned:
When I first started reading this decision, I initially thought that it was reasonable for the police to make an investigative stop of a car with a discrepancy like this one. But just like the cop in this case, I was wrong. The courts are constantly evolving , re-defining and re-working the Fourth Amendment’s meaning of the term “unreasonable search and seizure”. As I’ve written in the past, no matter what, never give your consent to a search of your self, your car or your home. The courts, with the aid of a good lawyer, just might surprise you.

It should be, as it stands right now, but the law may soon change. Florida police officers pull motorists over every day based on mistakes of law. As a Jacksonville criminal lawyer,I represent people every day who are the victims of police ‘mistakes of law’. In the case of Damian Leslie v. Florida, the police pulled over Mr. Leslie because he did not have a center rearview mirror. The cop believed this to be a traffic violation; it was not. When Leslie pulled over, the cop observed three baggies of marijuana in his lap while he was sitting in his vehicle. The cop then searched the car further and found some cocaine.

Leslie moved to suppress the evidence found in his car and the trial court denied the motion (why do trial courts so often refuse to acknowledge the current state of the law, I wonder?). Leslie wisely appealed to a higher court and, sure enough, the Florida District Court of Appeal reversed the trial court, and re-stated what has been the law in Florida for some time – “An officer’s mistake of law as to what constitutes a traffic violation cannot provide reasonable suspicion justifying a traffic stop”. Hilton v. State, (citation omitted); State v. Wimberly, (citation omitted)…” This seems obvious, right?

The United States Supreme Court is currently considering whether or not to allow traffic stop searches based on a cop’s mistake of law. In Heien v. North Carolina, a sheriff pulled a car over because it had a broken taillight. Unbeknownst to the sheriff, North Carolina allows a car to have only one working taillight; as such, the car was pulled over mistakenly. After some conversation, the sheriff asked for permission to search the vehicle. Mr. Heien agreed and the sheriff found 54.2 grams of cocaine in the car. Heien was indicted for cocaine trafficing and promptly filed a motion to suppress the evidence discovered during the search of the vehicle; the trial court (of course) denied the motion. The North Carolina Court of Appeals reversed the trial court (just like in Leslie v. Florida) because, as we now know, the police cannot base reasonable suspicion on an illegal or mistaken traffic stop.

But wait! The North Carolina Supreme Court reversed the Court of Appeals and said that when the officer’s mistake of law is ‘reasonable’ , it may give rise to the ‘reasonable suspicion’ required for a warrantless search of a vehicle under the Fourth Amendment of the Constitution. Fortunately, a North Carolina Court of Appeals judge dissented (disagreed), stating that this ruling created “fundamental unfairness” because it held citizens to a traditional rule that “ignorance of the law is no excuse” while allowing the police to be ignorant of the law and get away with it.

Lesson Learned:
Until the U.S. Supreme Court decides this issue once and for all, it’s still the law in Florida that a mistake in law cannot justify a vehicle stop and anything seized by the police during that stop should be thrown out (suppressed) by the court. However, the Supreme Court may just carve out an exception and allow the police, when acting in ‘good faith’ to pull over and search vehicles based on mistakes in law if the mistake was a reasonable one. But who will decide what police mistakes are ‘reasonable’ and which ones are not? The trial courts, who seem to deny defendant’s suppression motions as a matter of course. Hopefully, the Supreme Court will do the right thing and hold the police to the same standards as they do its citizens. Stay tuned. I will update this post as soon as the Supreme Court decides.

Yes, you can. When the police use gratuitous and excessive force against a suspect of a crime who is under control, (this usually means handcuffed) not resisting and obeying commands, it is a violation of their Fourth Amendments rights and the police are liable for the damages they cause. As a Jacksonville criminal lawyer, I represent people injured at the hands of the cops. In Sanders v. Duke, decided by the 11th. Circuit Court of Appeals on September 8, 2014, just such an allegation was made. The court held that Mr. Saunders, who alleged that his head was slammed against the pavement with extreme force after he had been handcuffed and was lying prone on the ground , stated a valid Fourth Amendment claim for excessive force against the Florida Department of Law Enforcement and the Orlando Metropolitan Bureau of Investigation. The court further held that the police were not entitled to qualified immunity, which is what the police always claim after they’ve injured someone during an arrest. Mr. Saunders met with a couple of individuals at a gas station in Orlando, Florida to sell them oxycodone pills. Those individuals turned out to be an undercover cop and a confidential informant. The drug sale took place inside the undercover cop’s car. After the sale took place, the officers drew their weapons and ordered Saunders to place his hands on the car and not move. Saunders immediately complied. Saunders was then jerked down to the hot pavement and handcuffed. He was held down on the pavement for a long period of time on his stomach and was not resisting, posing a threat or attempting to flee. He told the police he was “getting burnt” and held his face off the pavement to keep from being burned. Then, one of the cops slammed his face onto the pavement with extreme force. When he was brought to his feet, blood was pouring out of his mouth and face from the impact. Saunders suffered lacerations, injuries to his teeth and jaw, damage to his left eardrum and emotional distress. The federal district court dismissed Saunders’ Fourth Amendment claim after he brought suit there. Why? Because people that are arrested make claims of injury at the hands of the police all the time and the police claim qualified immunity. What’s that? It means that a person acting within their scope of authority or official capacity has a certain amount of discretion and authority to act a certain way. In layman’s terms, it means the cops can use an acceptable level of force against criminal suspects. The courts often side with the police against criminal suspects in these type of cases. But here, the appeals court ruled that the cops went too far. The Fourth Amendment of the Constitution guarantees the right to be free from the use of excessive force in the course of an arrest. What amount of force then is proper? The force used must be “objectively reasonable” in light of the facts confronting the officer. Here, the appeals court ruled that the district court should not have dismissed the claim. The appeals court cited cases where, for example, a police dog was unleashed to attack a suspect after the suspect complied with the police, and other cases where suspects heads were slammed against pavements and car hoods and trunks. In all those cases, the police were not entitled to qualified immunity. In the end, the appeals court found that the force used against Mr. Saunders was ” plainly excessive, wholly unnecessary, and indeed, grossly disproportionate”.

Lesson Learned:
This was an excellent decision from the 11th. Circuit Court of Appeals. Rather than just dismissing Saunder’s claim outright, (like the district court did) the appeals court gave careful consideration to the facts and did an objectively analysis. The unfortunate reality is that the police often overstep their bounds and use excessive force to subdue suspects and make arrests every day. Court decisions like this one, which allow the cops involved to be sued for their conduct, may have the impact of making them think twice before engaging in gratuitous violence against those accused of crimes.

Unfortunately, yes the police can keep the cash and they do, every day. The law enforcement practice is known as civil asset forfeiture, in which the police seize cash or goods from a person suspected of a crime, even if no charges are ever brought against that person. Since 2001, police have seized a staggering $2.5 billion in cash from people who were never charged with a crime. As a Jacksonville criminal defense attorney, I represent people fighting civil asset forfeitures.

Under civil asset forfeiture laws, the burden of proof is on the owner of the assets to show that they are not related to a crime by the legal standard known as a preponderance of the evidence. In essence, you must prove your own innocence. Why do the police do this? Because it is a significant source of revenue for them nationwide.

Imagine you’re driving down the highway on your way to buy a car. Suddenly, police pull you over for allegedly going 37 mph in a 35 mph zone. Upon discovering the $8,500. in cash you have on hand, the officers take you to jail and threaten to charge you with money laundering unless you turn over the money. Frightened, you give it to them. Am I making this up? Actually, it’s a true story – it happened to a man named Roderick Daniels. He eventually got his money back, but only after intense legal pressure from a good lawyer and media attention.

Many of the abuses occur at the state and local levels, because the federal government encourages them through “equitable sharing partnerships”, a practice that allows police agencies to circumvent state laws that might otherwise tie their hands. Under the program, a local police agency need only call up the Drug Enforcement Agency, Bureau of Alcohol, Tobacco and Firearms, or so other federal agency that then “federalizes” the investigation, making it subject to the laxer federal guidelines for forfeiture. Civil forfeiture is big business for the government. There is even a private for-profit firm named Desert Snow, which trains officers to detect suspicious behavior in people they’ve stopped in order to justify searches (such notable things as being nervous and having litter in the vehicle). The organization teaches officers how to casually ask drivers to allow for searches after the stop is officially over and the driver has been cited (or not) for unrelated violations.

In response legislation has been introduced by Senator Rand Paul to curb the abuses of these laws – including removing the profit motive incentive. But the law enforcement lobby is pushing hard to keep things the way they are. Currently, the federal government takes it’s cut of the money and then returns as much as 80% back to the local agency. It’s no more than a legal shakedown.

Lesson Learned:
The practice of police seizing money from drivers without any proof of illegal activity is a national outrage. Only one sixth of asset forfeitures are ever challenged, but when they are, the police end up agreeing to return the money 41% of the time. Even with the low “preponderance of the evidence” standard, often, when challenged, the police are unable to justify the car stops and seizures they made. What does this mean? If this happens to you, hire a lawyer to challenge the taking of your money by the police. You have a good chance of getting your money back.

Yes, unfortunately, the police can seize cash and take in all in a forfeiture. As a Jacksonville criminal attorney, I have argued that this constitutes an excessive fine under the Eighth Amendment. The Ninth Circuit Court of Appeals decision, on August 21, 2014, in U.S. v. Cyr, is an illustration of what not to do if the police discover a large sum of cash in your possession. Mr. Cyr, a Canadian citizen, crossed the border into the United States by airplane with $132,245. He failed to report the cash on a customs declaration form. While this seems rather minor, it’s a federal crime. Nine days later, Cyr was pulled over for speeding; the cop noticed that Cyr was “extremely nervous”. He then gave the cop permission to search his car (mistake number one). The cop found a bag containing $132,245. Then, with Cyr’s consent, a drug dog was called in and alerted positive to the odor of a narcotic substance on the money (mistake number two). An investigator was called to the scene and began questioning Cyr about the source of the money. Cyr could not provide any documentation as to where the money came from (Cyr talking to the investigator, mistake number three).

The cops naturally seized the cash and arrested Cyr for the failure to report violation. The government filed a civil civil forfeiture action for the entire $132,245., even though they had absolutely no evidence that the money was involved in any criminal transaction. Cyr stipulated that the currency was subject to forfeiture (mistake number four). However, he did retain the right to move to mitigate the forfeiture amount pursuant to the Eight Amendment”s bar on excessive fines. The court ruled that under the totality of the circumstances, Cyr failed to show that the forfeiture of all that cash was unconstitutional.

Ordinarily, in a civil forfeiture action, the government bears the burden of proving by a preponderance of the evidence that the property is subject to forfeiture. But when Cyr stipulated that the currency was subject to forfeiture because he failed to report it when he entered the country he “relieved the government of this burden”. So the only question became whether or not the fine was excessive. The courts have generally held that “if the amount of the forfeiture is grossly disproportional to the gravity of the defendant’s offense, it is unconstitutional”. At the end of the day, it’s a subjective decision for the court to make. However, the court must consider four factors: 1) the nature and extent of the crime, 2) whether the violation was related to other illegal activities, 3) the other penalties that may be imposed for the violation, and 4) the extent of the harm caused.

This is one that could have, and should have, gone Mr. Cyr’s way. First, a failure to report bringing cash into the country is not a serious offense. Second, although the court found that “the currency was probably connected to drug activity”, there was no real evidence of this. Drug dogs alert to currency in a vast majority of cases. Third, the court did not need to forfeit the entire amount. And fourth, the harm caused by bringing a large sum of cash into the country is minimal, at best.

Lesson Learned:
This case is a textbook example of what not to do if stopped by the police with a large amount of cash. First, do not consent to having your car, property or person searched. Just say no. Second, do not consent to having a drug dog sniff around your car, property or person. Third, do not answer questions about where the money came from when asked. Assert your Fifth Amendment privilege against self incrimination and say nothing. And finally, do not agree with the government that the money seized is subject to forfeiture. The police and the courts are all too quick to assume criminal activity; the next thing you know, all your money is gone.