Possession of drug paraphernalia in Florida is a misdemeanor. To have a pipe or to have a syringe or a cutting tool or a scale, that is a misdemeanor but generally when the police find those items, they also find illegal drugs. That is just an additional charge that is added to the indictment or information against you. Sometimes, it is rare, but sometimes people are stopped and searched and they might have a pipe with no residue on it and they do not have any drugs in their possession and some people will be charged specifically with that crime but the consequences of it being a misdemeanor are not that severe.
There is also, in regards to controlled substances, a number of laws that prohibit their possession with intent to sell or sale within one-thousand feet of different types of buildings or businesses that enhance the penalty. Possession of any controlled substance with intent to sell within one-thousand feet of a school, any type of school, assisted living facility, they outlaw your possession with intent to sell within a one-thousand feet of a convenience store, so any store could qualify for that or within one-thousand feet of any type of a religious building. I have had cases where my client was alleged to have attempted to sell a controlled substance in a parking lot of a furniture store.
It just so happened that a few blocks away, there was a school, had no relation to this furniture store parking lot but the police measured the distance from an aerial perspective, how far exactly that parking lot was from the school and it just came in under one-thousand feet and got charged with possession with intent to sell within one-thousand feet of the school. It becomes real tough if you are in that business to not violate that enhancement provision in the law.
Is It Mandatory For An Officer To Have A Search Warrant When Looking For Drugs?
The search of homes is much more protected than the search of automobiles. Let us start with automobiles. The police have a right to stop a vehicle if they have reasonable suspicion that an offense was committed. Any traffic violation gives the officers the right to stop a vehicle. Unless something more has developed from that stop that gives them probable cause to search. Reasonable suspicion is the lowest threshold required to stop the car, probable cause is the next threshold which has to be proven to search the vehicle unless permission is given. Unfortunately, so many people when they are stopped and asked if the police search their car, say yes where they do not have to say that, waive any claim of an illegal search if it turns up possession of contraband.
You do not have to let the police search and if they search and find contraband and they did not have probable cause, then the exclusionary rule would suppress any evidence and they would not be able to prosecute you for the possession of their contraband. Once they have reasonable suspicion to stop, so if they claim that you are speeding or you did not come to a complete stop at a sign or a light or you are weaving or whatever reason they might choose to pull your car over, that gives them a right to stop you. It does not give them the right to search you. What I have seen a lot happening more recently is that police claim that when they make the stop, they smell of burnt marijuana. It has been upheld by the appellate courts of Florida, so if they claim they smell burnt marijuana, they have got a right to search, it gives them probable cause.
Anything they find pursuant to the search is subject to be brought in against you. Some officers lie about that because they know that is a trump card to validate their search. If that happens, though, and they do not find any marijuana, pipes or any marijuana cigarettes that are burnt down, if there is no corroborating evidence, then you still have a shot at challenging the officer’s honesty because the officer’s claims of smelling burnt marijuana suggest that he should find something that corroborates that during the search and if there is none, it makes a pretty strong argument that the officer lied. Oftentimes, when cars are stopped, if the officer sees people ducking under the seats that can give rise to probable cause. There is an exception to searches when officers’ safety is suggested.
The officer has a right to search for his own protection the individuals and the areas within the car that they were at, so again, oftentimes, I will see a police report saying, “As the car was pulling over after I activated my lights, I saw a lot of ‘furtive movement’ – ducking, reaching under seats, stuff like that”. That has been a wealth for the police to get around the probable cause issue. But if there are not any movements, if there is not any burnt marijuana smell and there is nothing else suggesting any improper conduct, the officer has absolutely no right to go searching a vehicle and if he does without consent, that would allow for a motion to suppress any contraband that they might find in that search.
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