Category Archives: Search and Seizure

Do I Have to Do Field Sobriety Exercises?

You Can Say, “No,” to Field Sobriety Exercises

This is the short version of the standard FSEs. The officer will be looking for much than the simple completion of these exercises.

By: Adam L. Bantner, II

Board Certified Criminal Trial Law Attorney

As a criminal defense and DUI attorney, one thing is certain to occur over and over again at social gatherings; someone will ask me whether they should take a breath test and should they perform field sobriety exercises if they’ve been pulled over by law enforcement and suspected of committing a DUI. While the scope of this post does not include an answer to the first part (however, short answer is don’t give them your breath, but there are many, many factors you should consider prior to making that decision), I will attempt to explain the law and response that will best help you and your attorney as you defend your DUI.

The Law of Field Sobriety Exercises in Florida

First, the law on this issue is by no means clear and settled throughout the State. In fact, the law sometimes seems to vary between courtrooms in the same County in the same Circuit! However, there seems to be some consistency in general principles in Hillsborough County.

First, if an officer does not possess reasonable suspicion of impairment, they cannot request a suspect to perform field sobriety exercises. If an officer possesses reasonable suspicion of impairment, then can request performance of field sobriety exercises but they cannot compel performance. Where an officer possesses probable cause of driving under the influence, an officer can compel performance of field sobriety exercises. State v. Carney, 14 Fla. L. Weekly Supp. 287a (Hillsborough Cty. Ct., 13th Cir., December 7, 2006). The Court in State v. McFarland, FLWSUPP 2702MCFA, (Fla. Broward Cty. Ct. 2017), affirmed by State v. McFarland, 26 Fla. L. Weekly Supp. 546a (Fla. 11th Cir. Ct. 2018), agreed with the Carney analysis.

Next, for the purpose of this article, you don’t need to concern yourself with whether you believe the officer possessed reasonable suspicion of DUI, probably cause of DUI, or neither. These are legal conclusions that law enforcement, attorneys, and judges can and do get wrong. What you do need to know is that a refusal to perform the requested exercises will only be used against you in court if the officer possesses at least probable cause of DUI. If the officer possesses any level of suspicion less than probable cause, the request to perform the exercises is just that, a voluntary, consequence-free choice with the ability to say, “no.”

Now, should you say “no”?

Don’t Do The FSEs!!!

There are a myriad of reasons why one should not perform the field sobriety exercises; we are just going to focus on a couple of them.

One, if the officer is asking you to do the exercises, there is little to no chance that your performance on the exercises will dispel any suspicion of DUI by the officer. At this point in the investigation, he is in the evidence gathering phase and he is looking to build his or her case against you. In sum, you’re taking a ride to county jail regardless of your performance.

Second, you are, most likely, not going to do well on the exercises. The first test, the Horizontal Gaze Nystagmus, or “HGN,” is the most reliable by the scientific evidence but also the hardest to independently verify. Any recorded video will not show your performance. As such, the officer’s report of your performance is almost unassailable if he performed it to standards. Also, there are other factors that can cause nystagmus in addition to consumption of alcohol (fatigue, allergies, etc.).

The second and third tests, the Walk and Turn and One-Leg Stand, are also problematic. For most of the public, any performance of these exercises are likely your first attempts at either. Did you hit a homerun in your first little league at bat? Most likely not. Furthermore, the officer is not looking for simple completion. He is looking for clues that indicate impairment of which you will not be aware. For example, if you walk the line without falling, you may think you passed. However, if you raised your arms more than six inches, you missed heel-to-toe by more than an inch, you turned improperly, or you started early, you showed impairment. Also, you will be performing these, most likely, late at night, roadside, and under the stress of an impending arrest. Again, you are not likely to do well.

All this leads to the nearly inescapable conclusion that the rewards of a good performance are greatly outweighed by the dangers of poor performance. So when the officer asks, “Will you take these tests?” politely decline citing this article and your fears that the stress of the situation would cause you to perform poorly.

Call Hillsborough DUI Lawyer Today!

After the officer arrests you (because his mind was made up to do so the moment he made the request), bond out of jail and give us a call. We’d love to help! 813.397.3965.

The Inevitable Discovery Doctrine

A room after a search, Russia, early 20th century. Found in the collection of the Russian State Film and Photo Archive, Krasnogorsk. (Photo by Fine Art Images/Heritage Images/Getty Images)

Generally speaking, law enforcement does not have a right to search a residence without either a search warrant or consent to search given by the owner of the residence. Any evidence obtained without a warrant or consent will have occurred in violation of the Fourth Amendment to the U.S. Constitution and said evidence will be prohibited from use by the State in its prosecution. However, there are some exceptions to the general rule.

One such exception is the inevitable discovery doctrine. It requires the prosecution to prove “by a preponderance of the evidence that the information ultimately or inevitably would have been discovered by lawful means.” Nix v. Williams, 467 U.S. 431, 444 (1984). With regards to the potential for the evidence to have been discoverable by use of a search warrant, the State must further prove that law enforcement was in the process of obtaining a warrant. Rodriguez v. State, 187 So. 3d 841 (Fla. 2015). “We conclude that permitting warrantless searches without the prosecution demonstrating that the police were in pursuit of a warrant is not a proper application of the inevitable discovery rule. The rule cannot function to apply simply when police could have obtained a search warrant if they had taken the opportunity to pursue one, but can only apply if they actually were in pursuit of one.” Id. at 849.

O’Hare v. State

In O’Hare v. State, 44 Fla. L. Weekly D335d (Fla. 5th DCA 2019), the trial court had denied O’Hare’s Motion to Suppress by applying the inevitable discovery doctrine to the illegal search conducted by law enforcement. Essentially, O’Hare was suspected of possessing child pornography on his computer. Even though law enforcement had already developed probable cause to apply for a search warrant, they decided to conduct a “knock and talk” at his residence. When O’Hare refused to grant them access to his home, law enforcement decided to let themselves in and to begin a search. At the hearing, the State failed to prove that law enforcement was in the process of obtaining a warrant. As such, the Motion to Suppress should not have been denied based on the inevitable discovery doctrine.

However, the State also argued that the evidence would have been obtained through an independent source. The independent source rule “applies when evidence is discovered as a result of unlawful police activity but is also discovered independently through a lawful investigation that occurs either before or after the illegal activity, so long as the independent investigation itself is ‘untainted by the initial activity. State v. Ojeda, 147 So. 3d 53, 65 (Fla. 3d DCA 2014). The appellate court ruled that O’Hare’s case should be remanded to the trial court for consideration of the applicability of the independent source doctrine rather than dismissing the charges.

Call The Bantner Firm Today!

If you’ve been arrested or charged subsequent to a search of your home or business in Hillsborough County or the surrounding areas, give us a call today at 813.397.3965. As you can see, search and seizure issues can be complicated. You need a board certified criminal trial law attorney to make sure this issue is analyzed properly. Call for your free consultation now!

If The Motel Room is Searched, Can the Parked Car Be Searched?

One of the tools readily available to law enforcement is a search warrant. A warrant typically follows days, weeks, or months of surveillance of a particular target. The investigation could be focusing on narcotics, weapons, human trafficking, or any other number of criminal activities. After the gathering of evidence through surveillance, the case agent will submit an application for a warrant to a judge. If the judge finds probable cause within the four corners of the document, a warrant will issue. Of course, following the issuance of the warrant, the home, residence, vehicle, computer, etc. will be searched.

With regards to a piece of real property (home, rental, motel, hotel, etc.), the warrant will typically include permission to search the “curtilage” of the property and all items within the curtilage. In determining whether parts of the property constitute “Curtilage” courts typically look to four factors:

  1. the proximity of the area claimed to be curtilage to the home
  2. whether the area is included within an enclosure surrounding the home
  3. the nature of the uses to which the area is put, and
  4. the steps taken by the resident to protect the area from observation by people passing by.

United States v. Dunn, 480 U.S. 294 at 301 (1987).

Essentially, curtilage is an area so intimately tied to the home itself that it should be placed under the home’s ‘umbrella’ of Fourth Amendment protection.” Id. “[T]he primary focus is whether the area in question harbors those intimate activities associated with domestic life and the privacies of the home.” Id. at 301 n.4. 

What About a Car Parked In Front of a Motel Room?

Now to answer the questions presented: the short answer is no, a car parked in front of a motel room cannot be searched as part of the curtilage of the property. Shannon v. State, 43 Fla. Law Weekly D1704a (Fla. 2d DCA 2018).

In Shannon, “the trial court concluded that Shannon’s car had been parked in the curtilage of rooms 120, 121, and 124. The court found that the car was parked three feet in front of room 120 and that when Shannon exited room 124, it took him about two-and-a-half seconds to get to his car in front of room 120. However, the proximity of the car to the rooms is only one factor set forth in Dunn. Consideration of the other Dunn factors leads to the conclusion that the parking space in front of 120 did not constitute the curtilage of the three motel rooms identified in the warrants. There was no indication that the parking space was enclosed, thus suggesting that it was accessible to anybody walking around the motel. There was no indication that the occupants of the rooms took any steps to protect the parking space from observation of people passing by or that the parking space was used for other purposes by the occupant of the rooms. The parking space was used by Shannon at the time in question, but there was no indication that it could not have been used by anybody else visiting the motel.”

A such, the narcotics that were found in the vehicle subsequent to the illegal search and seizure of Shannon and his vehicle were suppressed from introduction into evidence and Shannon’s conviction was overturned.