Florida High Court Reinstates Conviction Based on Disputed Evidence – State v. Hankerson

July 13, 2011 by David S. Seltzer

As a south Florida drug crimes criminal defense lawyer, I know how important the legality of a search can be to a drug case. Because mere possession is a crime in itself and can lead investigators to other crimes, finding a drug in someone’s possession frequently makes or breaks the case. Thus, when a search is illegal, a good defense attorney can often get the resuting evidence thrown out and undermine the case. That was what happened in the Florida Supreme Court’s State v. Hankerson. Anthony Hankerson was charged with possession of cocaine with intent to sell, within 1,000 feet of a school. Hankerson argued that Delray Beach police did not have probable cause to believe he had committed a felony and thus could not legally search him. The trial court disagreed and Hankerson was convicted, but on appeal, the Fourth District Court of Appeal reversed. The Supreme Court’s decision reinstated Hankerson’s conviction.

Hankerson was spotted by an officer driving up to a home, showing something small in his hand to people on the porch, exchanging that thing for money and then leaving, all the while glancing up and down the street. Based on that exchange, he asked colleagues to pull over Hankerson’s car. The officer who performed the traffic stop saw Hankerson bend down when he was first pulled over, then asked him to remove his shoes. When he did, the officer spotted him palming a set of baggies of what turned out to be cocaine. At trial, Hankerson unsuccessfully moved to suppress this evidence and was sentenced to 10 years in prison for possession of cocaine for sale.

He appealed to the Fourth District Court of Appeal, which reversed the conviction. That court declined to consider the state’s argument that the officer performing the traffic stop was merely investigating, saying the state had not raised the issue at trial. The state appealed this to the Florida Supreme Court, citing a conflict with that court’s 1999 decision in Dade County School Board v. Radio Station WQBA. In that case, the court found that appellees need not limit their arguments to arguments that were expressly made in trial court as long as there’s a basis for the arguments in the record. Similarly, the Supreme Court found, the Fourth District could have and should have considered the state’s argument that the traffic stop was merely investigatory. It then went on to find that the trial court had probable cause to search Hankerson based on what the first officer witnessed. Justice Pariente dissented, saying the facts supported reasonable suspicion but not the stricter probable cause.

As a Miami-Dade narcotics criminal defense attorney, I am disappointed by this decision. As the dissent points out, probable cause is a high hurdle that an officer would have to pass in order to get a search warrant. A warrantless search like the one of Hankerson should have an even higher standard, but this decision loosens standards instead. The result will likely be that police officers in Florida feel free to search anyone suspected of drug crimes, even when the suspicions aren’t very well-founded. That goes against many Americans’ ideas about the proper role of police, even if the courts have decided it doesn’t violate the Fourth Amendment. As a Fort Lauderdale drug crimes defense lawyer, I’ll continue to watch search and seizure issues, especially in Florida courts.

If you’re accused of a drug crime in Florida, you could go to jail or prison even for relatively minor and nonviolent acts. Don’t hesitate to call Seltzer Law, P.A. for a free, confidential consultation. We answer the phone 24 hours a day and seven days a week, because we know trouble doesn’t happen just form 9 to 5. You can reach us at 1-888-THE-DEFENSE (1-888-843-3333) or send us a message online.

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