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As she explained in her affidavit, during the encounter at Holy Smokes Man on April 23, , and based on the totality of the circumstances and her training and experience, Rodriguez felt she had probable cause to believe that the packages for sale contained controlled substances, specifically synthetic marijuana. Indeed, the totality of the circumstances includes her own knowledge about prior synthetic marijuana investigations involving similar leafy green material and packages labeled "Scooby Snax," prior citizen complaints about the store, and reports from a deputy sheriff.

The totality of circumstances also includes Rodriguez's own observations in the store and parking lot, the presence of paraphernalia for sale including glass pipes known as "bongs," rolling papers, and hidden compartment containers, Rodriguez's purchase of a package of "Scooby Snax," the pricing of Plaintiffs' products, Pando's reluctance to identify his supplier, and discrepancies regarding the chemical analysis report produced by Pando. And, as Rodriguez later testified, the Plaintiffs' reluctance to provide information about their supplier enhanced her suspicions that the products were illegitimate.

The totality of circumstances also include what Rodriguez could see in plain view in both the public areas of the store and after she was invited into the back office, including the packages that were visible underneath the counter. In fact, a photo supporting Rodriguez's affidavit demonstrates that, from the vantage point of behind the counter, Plaintiffs' products were plainly visible. The photo is consistent with Rodriguez's statement that she "observed the K2 or Spice products were stored in Ziplock bags underneath the counter with different types of K2 inside.

Finally, Rodriguez had occasion to observe the labels of the packages themselves, with graphics and names such as "Fairly Legal," "Bomb Marley," "Mr.


Happy," and "Cloud Nine," which are arguably suggestive of an illegitimate use. These facts support both probable cause, and a finding that the incriminating nature of the products in Plaintiffs' store was immediately apparent. Also, a very similar argument to the one advanced by Plaintiffs was expressly rejected by the court in United States v. Wright, Fed Appx.

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In Wright, the Eleventh Circuit affirmed the district court's denial of a defendant's motion to suppress and found that the plain view doctrine applied to the seizure of Lortab pills, noting that the officers had prior training in identifying Lortab, the officers had already observed apparent narcotics in the same room, and the pills were packaged in a clear plastic sandwich bag instead of a prescription drug bottle.

Based on these facts, the court found that "the incriminating character of the pills was immediately apparent and a man of reasonable caution could find that the pink pills were contraband. And, significantly, the court rejected the defendant's argument that the incriminating character of the pills was not immediately apparent because the officers could not verify that the tablets were contraband until they called a poison control center. Indeed, other cases have rejected the argument that the incriminating nature of seized contraband cannot be immediately apparent without definitive identification of the substance.

In Danner v. United States, NO.

Known Residents

The movant argued that the fact that an officer called poison control to determine the identity of the pills established that the incriminating nature of the pills was not immediately apparent. The court disagreed, however, and reasoned that the call to poison control did "not negate the apparent incriminating nature of the pills as they were found.

The same reasoning applies to the instant case. The fact that testing of Plaintiffs' products could confirm the presence of a controlled substance does not negate the apparent incriminating nature of the products as they were found. Nor does it negate Rodriguez's reasonable suspicions as a law enforcement officer, based upon all the surrounding circumstances, including her observations while in the Holy Smokes Man store, her interactions with Plaintiffs at the time, and her prior experience, education, and training.

Further, Eleventh Circuit precedent on the application of the plain view doctrine in the context of qualified immunity does not require that the officer know with certainty that the item is definitely contraband, as opposed to appearing to be contraband. For example, in Fish v. The officer was familiar with standard domestic violence injunctions and, upon observing a revolver hanging from a bedpost and other firearms, asked plaintiff, "you still got that injunction against you for the firearms?

The plaintiff defensively replied that the firearms were not his, but belonged to his son.

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  • Although the response didn't definitively determine the ownership of the firearms, based on the circumstances, including the defensive nature of the response, the Eleventh Circuit found that both the plain view doctrine and qualified immunity applied. Indeed, Eleventh Circuit authority demonstrates that under the plain view doctrine, there is no requirement that an officer know with absolute certainty that a crime has been committed, rather the question is whether there is a reasonable ground to believe that it has been committed.

    See United States v. In Smith, the court considered whether the seizure of pornographic photographs of minor children was legitimately conducted under the plain view doctrine during a search for evidence of illicit drug activity. The defendant argued that the incriminating nature of the photographs could not have been immediately apparent because the age of the females depicted was uncertain, and there was no evidence that the officers knew whether defendant met the technical requirements and mens rea defined in 18 U.

    The court reasoned that "probable cause is not based on knowledge of legal technicalities, but rather on whether there is a reasonable ground to believe that a crime has been committed. Indeed, "[t]here is no rule of law which requires an officer to know with absolute certainty that all elements of a putative crime have been completed when he seizes an article which reasonably appears to be incriminating evidence. The court also reasoned that it was not problematic that the officers did not look at each individual photo before seizing them, nor was it problematic that some of the photos turned out to be of adult women.

    Turning again to the instant case, I submit that the seizure on April 23, was permissible under the plain view doctrine because T. Rodriguez was lawfully located in the place from which the seized objects could be plainly viewed and had a lawful right of access to the objects. She observed the seized products in plain view when she entered the store and, as to the bulk of the supply located behind the counter, observed the products after she was invited to the office in the back of the store. Finally, the incriminating character of Plaintiffs' products was immediately apparent based the labels themselves and the totality of the circumstances known to Rodriguez.

    And, contrary to Plaintiffs' argument, Felix Rodriguez's apparent concessions during cross-examination at the June 30, suppression hearing are insufficient to create an issue of fact regarding probable cause. Plaintiffs make much of the fact that, following detailed testimony about the events of the April 23, seizure, F. Rodriguez was asked leading questions on cross-examination and agreed that he had nothing more than "suspicions" about whether banned chemicals were present, and that those suspicions were insufficient to support a search warrant.

    Rodriguez testified that he did not believe he would have had sufficient probable cause does not accurately portray the testimony. When read in context, it is apparent that his answer is meant to concede that he had not tested the products that were seized and did not know with certainty what particular substance they contained, and therefore he had only a "suspicion" that they contained a controlled substance.

    Second, and more importantly, whether F. Rodriguez personally believed probable cause existed has no bearing on the abundance of undisputed facts detailed above that are sufficient as a matter of law to establish probable cause. Probable cause is a question of law reserved for the Court. Indeed, it has long been recognized that, where there is no dispute as to what facts were relied on to demonstrate probable cause, the existence of probable cause is a question of law for the court.

    See Stewart v. Here, there are no disputes as to the material facts relevant to the Court's probable cause analysis.

    enter site And when F. Rodriguez's answers are viewed in the context of the entirety of his testimony and not read in isolation, it is apparent that his testimony is consistent with the undisputed facts that support probable cause. For example, his testimony directly supports the undisputed facts cited in T. Rodriguez's affidavit in numerous ways. Just a few examples include his testimony regarding the Crimestoppers tips, the presence of bongs and other paraphernalia in the Holy Smokes Man store, and similarities between Plaintiffs' products and products seized during a prior investigation, including "Scooby Snax" in particular.

    As detailed above, these facts and others contributed to the totality of the circumstances known to T. Rodriguez prior to the seizure, and none of those facts are in dispute. As the Eleventh Circuit's decisions in Fish and Smith demonstrate, the plain view doctrine does not require the officer to know with absolute certainty that the seized items are actually contraband, as opposed to appearing to be contraband under the circumstances.

    Here, there were numerous other facts to justify T. Rodriguez's reasonable suspicions beyond the appearance of the packages themselves. Rodriguez did not need to know with certainty that each and every package of synthetic marijuana seized contained a Schedule I controlled substance. It is sufficient that she had a reasonable ground to believe that Plaintiffs had committed a crime. Having seen products that she reasonably believed contained a controlled substance, Rodriguez had probable cause to presume, without field testing each package, that there was contraband among the products offered for sale in Plaintiff's store, and that the seized products were either contraband themselves, a controlled substance analog as set forth in Fla.

    See Smith, at Or alternatively, at a minimum T.

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    Rodriguez had arguable probable cause for the seizure and is therefore entitled to qualified immunity. See Jones v. They also argue that the nature of the FDLE results from the April seizure were stale as Rodriguez apparently conceded during the suppression hearing. Generally, a search warrant may be voided if the affidavit supporting the warrant contains deliberate falsity or reckless disregard for the truth.

    Franks v.

    The Oracle

    The Supreme Court instructs that 1 "where the defendant makes a substantial preliminary showing that a false statement knowingly and intentionally, or with reckless disregard for the truth, was included by the affiant in the warrant affidavit," and 2 "if the allegedly false statement is necessary to the finding of probable cause, the Fourth Amendment requires that a hearing be held at the defendant's request.

    And if, at the hearing, the defendant establishes the allegation of perjury or reckless disregard by a preponderance of the evidence, and "with the affidavit's false material set to one side, the affidavit's remaining content is insufficient to establish probable cause, the search warrant must be voided and the fruits of the search excluded to the same extent as if probable cause was lacking on the face of the affidavit. Further, this rule also applies to material omissions from warrant affidavits. And, it "is possible that when the facts omitted from the affidavit are clearly critical to a finding of probable cause the fact of recklessness may be inferred from proof of the omission itself.

    However, omissions that are merely negligent or insignificant and immaterial, but not reckless, will not invalidate a warrant.