Posted on March 29, 2016 by Jeffrey Feiler
Today, I'm going to tell you the story of "Neil", a smart man who needed a South Florida criminal lawyer to straighten out the details of a very scary case. Neil was an entrepreneur growing marijuana in his house. He had enough plants and weight to subject him to a three-year minimum mandatory Prison sanction on a Drug Trafficking charge, which carried a maximum of thirty years. It seems that a competitor or someone who didn't like Neil gave the Police an "anonymous tip" that pot was being grown in the residence, a private home. Neil was crafty. He had covered all the windows and installed a top quality air-filtration system that eliminated any odors. From the outside, even his neighbor, a US Customs Agent, didn't know that Neil had a grow operation going on inside.The Detectives arrived at the residence at about 8:00 am. They sat in their car and watched Neil's house from across the street. At 8:20 am, Neil came outside and opened the front door of his pickup truck, which was parked facing away from the house. The Detectives drove up, blocking the truck, and leaped out with guns drawn. They laid Neil face down on the driveway and handcuffed him. They claimed to smell an odor of marijuana and asked for Neil's Consent to search the house. Neil knew the two Police Detectives were lying about the smell. He was smart enough not to give Consent to search and asked for a warrant, which, of course, the Detectives did not have.
The Detectives, who were employed by the County, radioed for a marked unit from the local municipality (which I will leave unnamed), and at 8:32 am, a Uniformed Officer from that Municipality arrived. The officer was not driving his standard vehicle – his usual car was in the shop. Instead, this was an older car with very poor air conditioning. The Florida sun soon heated the outside temperature to near ninety degrees. It was even hotter in the car than it was outside. The Detectives put Neil in the back of the old police cruiser. Over the next two hours, the two Detectives came to Neil twice asking whether he was ready to give them his keys. Neil, bathed in sweat, continued to refuse. Finally, at 10:45 am, Neil asked permission to let his dog out in the back as his pet had not yet been walked. The Detectives agreed. As soon as Neil opened the front door, the Detectives pushed inside and searched the house. In the rear bedrooms, they found many plants growing under intense lamps with lots of related equipment. Neil was arrested. In their report, the Detectives made the following claims: they arrived at 10:30 am. Neil came outside and they chatted with them, at which time Neil gave them Consent to search. They went inside with Neil, found the plants, and placed Neil under arrest.
Neil posted bond and came to see me two days after his arrest. I read the Probable Cause (PC) Affidavit. Neil told me his version of the story. I choose to believe my clients and I do not judge them. However, the proper way to evaluate a case is through the eyes of a Judge or Jury. In other words, who would they believe? Neil, or the Detectives?
In this case, there was nothing that I could accomplish with the Intake Assistant State's Attorney (ASA). They simply chose to believe the Detective's version, as they usually do! The case was filed and assigned to another ASA in the Division. The Judge who was assigned to the case was a straight shooter – the type of judge who would make a fair determination. Unless the Police version is cast into serious doubt, the natural human tendency is to believe the Police. That made this case an uphill battle. To WIN this case, I had to either prove to the Prosecutor that their Detectives were liars and convince them to drop the case, or win a Motion to Suppress the evidence before the Judge. There is something called the "exclusionary rule" whereby unlawfully obtained evidence is excluded from introduction in Court. It is the balance provided via the Fourth Amendment (Searches and Seizures). In order to lawfully search a residence, the Police must have a Warrant or an exception to the Warrant requirement, such as Consent or Exigent Circumstances. The case proceeded through the Arraignment and a Trial date was set.
In this case, Discovery was the key to winning. I took the depositions of all of the Officers involved. The Municipal Officer was in a jam. He was an honest cop but he also read the Detective's report and he didn't want to make his "brothers in blue" into liars. He conveniently had little recollection of the time periods, however, he did acknowledge that Neil was in his car and that the detectives spoke to him inside the car. The Detectives were deposed as well. They stuck to their story. They claimed that the reason that a written consent form was not signed was because they had run out of the written consent forms that they usually kept in their car.
A good Private Investigator is a gem. I know a former Detective who reached the highest rank in his department (in another county) as a Homicide Detective and served for 30 years in every capacity, from Uniform on up. Together, we obtained the Police Dispatch records and painstakingly figured out from the numbers and codes who each speaker was and at exactly what time words were spoken. We made a Public Records request and also ordered the Internal Affairs files for the Detectives. We learned that these Detectives had been accused of falsifying records before and even beating a Subject before. One had been reprimanded. I searched for other cases they handled and found an Appellate Court Opinion suppressing evidence in another case and finding these same Detectives not credible. The Appellate Court actually warned Circuit Court Judges against blindly finding Police Officers credible, as so often happens. We had a treasure trove.
I spoke to the Assistant State's Attorney (ASA). I had hoped the Prosecutor would be wise enough to see the truth. "So what if the Detectives were off on their timeline!" she said. It is maddening when the truth is so plain to see, and the Prosecutor should "do the right thing", yet she does not. To WIN, we would have to go to a Suppression Hearing. The Prosecutor offered to waive the three-year minimum mandatory and give Neil a Conviction and three years of Probation. That would actually be considered a win. Now Neil had to make a choice. If we won the Motion to Suppress, all the contraband would be excluded and the State would be forced to Nolle Prosse (Dismiss) the case. However, if we held the Suppression hearing and the Judge denied our Motion, which oftentimes happens, then the State would not waive the three years in prison and the evidence would come in at Trial.
We analyzed our Motion, the Judge, and the likelihood of succeeding. Neil believed he had a good chance. He also believed that I was the lawyer he needed to win the case. No pressure! After pleading with the ASA to see the truth and not succeeding, a Motion to Suppress was inevitable!
My Client and I attended a series of Calendar Calls, each scheduled about a month apart, for more than a year while the Discovery process ensued. Neil was out on Bond with no restrictions, so time was on his side - except for the dark emotional cloud. They say, "You can beat the rap, but you can't beat the ride." In some places, these proceedings are called Status Reports, or Soundings. They are interim conversations with the Court to keep everyone appraised as to how a case is going. Eventually, Discovery was completed, and in the absence of a viable Plea resolution, the case was Set for Trial with the understanding that there was going to be a lengthy evidentiary hearing on the Motion to Suppress. The Court scheduled a three-day period from Wednesday to Friday to hear from all of the witnesses. If the Motion was denied, the case was set to proceed to Trial on Monday. The battle was on!
Questioning an opposing witness who is under oath on the witness stand in Court is an art developed by a Defense Attorney over many years of practice. It is also by far the most fun a lawyer can possibly have when they are prepared, have a plan, and have the personality to conduct an effective cross examination. Cross examination is the biggest weapon in the Defense arsenal, and a devastating cross is a thing of beauty! During a cross examination, a Defense Attorney is allowed to ask "leading questions" of a State's witness after that witness has been given a direct examination by the prosecution. During the direct examination, the Prosecutor can only speak to a witness in open-ended statements and questions, such as, "Please tell the jury what happened…" on a specific day or time, or, "What happened next?" The Defense Attorney on cross is then permitted to ask leading questions such as, "Isn't it a fact that you were sleeping in your car, Officer, and didn't actually see what happened?" Later in the case, the State may get to cross examine a defense witness, and they get a chance to have their fun at your expense. Of course, the Defendant cannot be called as a witness by the State. The Defendant may elect to testify but cannot be compelled to testify (Fifth Amendment). In cases involving a warrantless search of a residence, the State has the burden of proving to the Court that the search was valid. Although it is a Defense motion, the State usually begins calling witnesses to meet their burden of proof. The Motion to Suppress in Neil's case took all three of the days allotted.
The State called two Detectives. Each one told a similar story, except only one Detective allegedly received Neil's Consent. There was a conflict in the evidence, as Detective "Smith" said they were both there, and Detective "Jones" testified that he was not present. In any event, the State had testimony from at least one Detective witness that Consent in fact was given. They both maintained their timeline, stating that the time from meeting Neil at 10:30 am to his giving Consent only took a few minutes, and that Neil may have been in the police car for a short time. Neither seemed to remember events from over a year ago and conveniently did not have any notes.
I went seemingly easy on them at first. I established their individual code numbers. I established with them what a Police Dispatcher was, how the Dispatch system worked and what certain codes meant. I then methodically reviewed with them the Dispatch logs. Detective Smith called Dispatch for a Uniformed Unit at 8:28 am. Detective Jones checked in for a safety check at 8:45 am. I went through each of their Records to show that Detective Smith had been proven to have written false reports in another situation where he was off-duty and beat a man in a bar. He was a liar and had been fired from the force, only to be re-hired later. Detective Jones had been reprimanded in a police brutality case. By the time I was done with them, the Judge knew that he was dealing with dishonest detectives and their credibility in general was shot. Also, they could not explain the Dispatch times and tried dodging questions. I called my Investigator to walk the Judge through the entire Dispatch record, including the several dispatches from the Uniformed Officer throughout the morning, which created a real timeline. Finally, the icing on the cake: I called the Uniformed Officer. He was not going to lie in Court to protect these guys. He admitted that he arrived at 8:32 am rather than two hours later at 10:30 am as the Detectives claimed, and that Neil was handcuffed behind his back, sitting by a tree when he arrived. The Detectives placed him in the back of the cruiser, still handcuffed. The car had a lousy air-conditioner and it was a blisteringly hot Florida day. The Detectives approached Neil several times, though he claimed he didn't hear the conversations. Eventually, the Detectives removed Neil and walked with Neil to the front door, at which time they followed him inside. Finally, Neil himself testified as to how he was effectively tortured by sitting in the back of a scalding car with little A/C, no water, and his hands tightly handcuffed behind his back, for two uncomfortable hours. He said he never gave Consent, although the Detectives repeatedly tried to get him to give Consent. Finally, he described how he did not intend for the Detectives to follow him into his house when he was allowed to attend to his dog, but they pushed their way inside.
The Judge definitely got it. The detectives were liars. The timeline spoke for itself. Neil had some minor credibility issues of his own, but on balance, it was clear that the evidence was to be excluded - and so the Judge ruled. The State was given the option of appealing the ruling, however, we returned to Court fifteen days later and the State announced a Nolle Prosse (Dismissal) of the case. Neil was a WINNER.
No matter how damaging the evidence, I always seek the best outcome for my clients. Call me, Jeffrey Feiler, at (305) 670-7700 to unravel all the details of your case.
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