99 Problems: Jay-Z and Florida Search and Seizure Law-Part Two

This is the second part of a two part series which focuses on the application of Florida Law to Jay-Z’s second verse of the song 99 Problems.

The first post, which can be found here details the initial stop, and Jay Z’s actions and responses to being stopped by the police. This final post will deal with the practical aspects of a search subject to a traffic stop and also will include some practical tips for interacting with the police during a traffic stop.

The goal of this post is to serve as an informational examination of Florida case law as it applies to Jay-Z’s traffic stop, and should not be taken as actual legal advice. This post is certainly in no way encouraging you to break the law, or condoning transporting any illegal substances. It is merely an exercise to see how much of search and seizure law Jay-Z got right, and more importantly provide you with some advice on how to handle yourself during your next traffic stop.

Before we begin, here is the music video to 99 Problems as a refresher

With that, lets begin our analysis of the remainder of the second verse of 99 Problems. 

“License and registration and step out of the car”

“Are you carryin’ a weapon on you I know a lot of you are”

I ain’t steppin out of shit all my paper’s legit

Unfortunately for Jay-Z, there is no right to refuse an officer’s order during a traffic stop. Whren v. United States, 517 U.S. 806, 813 (1996). That means that not getting out of the car when ordered to could lead to an arrest for Resisting With Out Violence charge, which could lead to a search of the vehicle in and of itself. From a practical standpoint, Jay-Z’s best bet in this situation is to remain calm and be as polite as possible to the officer. This is no guarantee that the officer will not search the vehicle, in fact it is almost guaranteed that if an officer has asked you to step out of your car he is certainly going to search it, the only question is how thoroughly, and will anything found be subject to a Motion to Suppress.

As for the “Are you carryin’ a weapon on you I know a lot of you are”, Terry v. Ohio allows for a weapons pat down anytime legitimate police activity puts an officer in close proximity to someone, if the officer has “reasonable suspicion” that the person may be armed and dangerous. 392 U.S. 1, (1968). Florida Courts have held that “reasonable suspicion” for a Terry stop can be as broad as “nervous evasive behavior” Paff v. State, 884 So. 2d 271, (Fla. 2nd DCA 2004). As we just discussed, at this point it is a pretty safe bet that the officer will legally be able to search the vehicle, So Jay’s not likely going to get a lot of traction from disregarding the officer’s order as grounds for a Motion to Suppress in a Court of law. His best bet in this situation would be to remain calm, and be as polite as possible. Remember, the officer has already told Jay that he was not under arrest, and as we see in the next line of the song, Jay-Z has not given consent to the officer to search the vehicle, so the officer is limited in what he can search for, and where he can search for it.

“Well, do you mind if I look round the car a little bit?”
Well my glove compartment is locked so are the trunk in the back
And I know my rights so you gon’ need a warrant for that
“Aren’t you sharp as a tack, you some type of lawyer or something’?”
“Or somebody important or somethin’?”
Nah, I ain’t pass the bar but I know a little bit
Enough that you won’t illegally search my shit

If you learn nothing else from this blog post, please learn this: the police DO NOT NEED A warrant to search your car. In 1991 the United States Supreme Court held that the police may search an automobile and the containers in it if they have probable cause to believe contraband or evidence is contained. California v. Acevedo, 500 U.S. 565 (1991). This case was adopted and followed by Florida Courts in 1995 in Peters v. State, (Fla. 4th DCA 1995). Jay was partially correct, an officer is not going to be able to search a trunk at this point without first establishing probable cause for the search. Remember, Jay-Z is not under arrest, so that means that any Terry search of his car is going to be limited to places a weapon could be accessible with in the vehicle. In other words, there is no way an officer is going to be able to search for the contraband in the trunk with what has transpired so far in the song. However, the glove compartment would be fair game for a search under the Court’s ruling in Peters.  Since we already know the drugs are in the trunk, a search of the glove compartment would not be an issue for Jay-Z. Jigga had enough forethought to keep his drugs in the trunk of the car, as long as there is no pass through from te cabin on the car to the trunk, anything in the trunk would be safe from any warrantless search, and any evidence obtained from the trunk would be subject to a Motion to Suppress.

“We’ll see how smart you are when the K9 come”

The last line of the second verse is perhaps the most ambiguous from a legal standpoint. Jay-Z has not been arrested at this point, so the officer is limited in how long Jay-Z can be kept waiting for the K9 unit to arrive. In Florida a stop of an automobile for a traffic violation must be limited to the time required to write the citation, unless there is a reasonable suspicion for a lengthier detention. This reasonable suspicion to justify the detention beyond the time needed to issue a traffic citation must be based on articulable facts that criminal activity is occurring. Cresswell v. State, 564 So. 2d 480, 481 (Fla. 1990). “When making a determination of reasonable suspicion, [a reviewing court] must look at the totality of the circumstances of each case to see whether the detaining officer has a particularized and objective basis for suspecting legal wrongdoing.” Poliar v. State,898 So. 2d 1013, 1014, (Fla. 4th DCA 2005) citing United States v. Perkins, 348 F.3d 965, 970 (11th Cir. 2003). United States v. Perkins, 348 F.3d 965, 970 (11th Cir. 2003).

In Polair the Court found that the stopping officer properly developed a reasonable suspicion of criminal activity that justified the 20-minute detention after the initial stop for excessively tinted windows. The Court determined that based on the officer’s testimony regarding the defendant’s excessive nervousness, his inability to answer simple questions about his birth date and home address, his deceit in failing to disclose his previous drug arrest, his travel from Miami, and questions about his immigration status justified the detention for further questioning and investigation for a period of time beyond that necessary to write a citation and do a computer check of his background. Thus, the Court determined that it was not a case where the driver should have been “free to go” after the citation was issued. The Polair Court ruled the officer asked sensible questions under the circumstances in the three to four minute initial detention, responding appropriately as defendant’s responses altered the dynamics of the stop.

So how does this approach apply to Jay-Z? It all comes back to Reasonable Suspicion. If the stopping officer made Jay-Z wait beyond the amount of time ordinarily associated with issuing a ticket for doing “55 in a 54” the question before the court at a Motion to Suppress would be whether or not Jay-Z’s behavior lead to a justifiable reasonable suspicion based on articulable facts that criminal activity is occurring. Simply going by what is contained in the second verse we know that we have an individual who was slightly confrontational with the stopping officer, and the fact that he fits a drug courier profile. Those facts alone do not seem to give rise to a reasonable suspicion that there was criminal activity occurring.

Of course what occurs during a traffic stop, and what is included in a Probable Cause affidavit can be two very different things, that is where Jay-Z’s line “I got a few dollars and I can fight the case” comes into play. It is the job of a defense attorney to point out the contradictions, and inconsistencies in the reports and testimony of the officer to the Court in making their case that a Motion to Suppress should be granted.

So after a through examination of the second verse of 99 Problems and how Florida law applies to it, what should you do if you are pulled over for a traffic violation?

  1. Remain calm. Do your best to not fidget or make furtive movements, make sure that the officer can see your hands and if you need to grab something in the cabin tell the officer before you move for it.
  2. Be Polite. Police Officers are people just like you and I, and as my Grandmother once told me you get more flies with honey than you do with vinegar. Being polite to the officer who just pulled you over is no guarantee that the officer will return the favor, however it is much easier to start of polite and become more forceful if the situation necessitates it than the other way around. Starting a traffic stop aggressively andwith an attitude toward the officer is almost never going to end well for you.
  3. Don’t Volunteer Information. This is not the same as not answering questions, or giving false information. The officer is entitled to basic identifying information such as your name, date of birth and address, you are not required to answer anything beyond this basic information. This might be obvious, but it bears repeating, do not admit to any wrongdoing, or carrying any illegal materials in your vehicle.
  4. Do not give consent to search your vehicle. I placed this last in the hopes that it will remain in your head after you have finished reading this blog post. Under no circumstances should you ever grant consent to search your vehicle. As was discussed in detail throughout this post there are many, many ways for the police to search your vehicle with or without a warrant, as long as you do not give consent to search your vehicle you will maintain at least some Fourth Amendment protections for these searches which will allow your attorney to file a Motion to Suppress in an attempt to keep the improperly attained evidence out at trial. The bottom line is that if the police really want to get in your vehicle for a search, they will figure out a way to do it, and your only real defense in that case is to use the Fourth Amendment to keep that evidence out. If you give consent to search your vehicle to the police, you are removing your best protection to keeping that evidence out at trial.

If you have been arrested for a drug charge please do not hesitate to contact Attorney Jason Seidman to answer any of your questions, and provide you with a free case evaluation. Call 954-740-0502 or email jason@defendingsouthflorida.com to review your options and put his experience to work for you