One-Week Delay Between Suspicious Behavior and Warrantless Search Was Too Long – U.S. v. Valerio

June 25, 2013 by David S. Seltzer

When I defend drugs and narcotics cases, the legality of searches is often very important. That’s because mere possession of drugs is illegal—and thus, a search can be the basis of criminal charges. But searches—and any resulting police seizure of property—must be legal in order to be admissible in court, because every American is protected from unreasonable searches and seizures by the Fourth Amendment. That principle was reiterated in the Eleventh U.S. Circuit Court of Appeals ruling in U.S. v. Valerio. Robert Joseph Valerio of south Florida was searched without a warrant nearly a week after law enforcement officers saw him acting in a way they thought was suspicious. The Eleventh agreed with Valerio that this was too long to support an exception to Fourth Amendment protections.

A DEA agent on a stakeout observed Valerio visiting a hydroponic gardening store. The agent noticed suspicious behaviors around his license plate during two visits, then followed Valerio to a warehouse in Deerfield Beach. A drug-sniffing dog later indicated drugs at bay 14 of the warehouse. However, a search warrant for bay 14 found that this was someone else’s bay, used as a recording studio where musicians sometimes smoked marijuana. DEA agents then were asked to go Valerio’s home for a “voluntary citizen encounter” in hopes of learning more. But instead of speaking with him as instructed, they waited for him to leave the home and searched him at gunpoint. Valerio eventually admitted to growing marijuana at the warehouse and was charged with growing more than 100 marijuana plants. He challenged the stop and frisk encounter at the subsequent bench trial, and again in this appeal.

The Eleventh Circuit started by noting that the government does not argue that this encounter was voluntary. It did argue that the search fell under the Terry v. Ohio exception to the requirement that police must have either a warrant or probable cause to stop and search someone. The Terry exception permits police to “conduct a brief, investigatory stop” if they have a reasonable suspicion of criminal activity, within the “rubric of police conduct” that must take place too quickly to permit a warrant. The Eleventh found that this was not an occasion for swift action requiring a Terry exception, because the search of Valerio took place nearly a week after agents had last observed him doing anything at all. Agents had the time to comply with the Fourth Amendment in several ways, the court observed. It reversed the denial of Valerio’s motion to suppress, vacated his conviction and remanded the case.

This is a good reminder that criminal defendants can score victories when police overstep their rights significantly. Police officers have a lot of leeway—the Terry exception is one example—but as the Eleventh observed, it’s not infinite. When practicalities allow, defendants’ Fourth Amendment rights must be respected, even if that’s inconvenient for officers. Granting the suppression motion will make the case much harder to win on remand, because the admission by Valerio, at gunpoint, was the center of the case against him. That statement and any resulting discoveries are “fruit of the poisonous tree” and cannot be used. That’s why I look carefully at police conduct in any drug possession case or other case that turns on the results of a search.

If you’re accused of a crime in Florida and you’d like to talk to an experienced attorney about your rights and your options, call Seltzer Law, P.A. today. For a free consultation, you can send us an email or call 24 hours a day and seven days a week at 1-888-THE-DEFENSE (1-888-843-3333).

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