Warrantless Searches

The Fourth Amendment of the United States Constitution states:

“right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause . . . and particularly describing the place to be searched, and the persons or things to be seized.”

Over the years, court rulings have interpreted the exact meaning of those words. One of the landmark cases is called Mapp v. Ohio which laid the ground work for the exclusionary rule. Fruits of the poison tree. In Mapp v Ohio officers searched a residence without a warrant and found evidence of pornography. 

Facts - Mapp v Ohio:

On May 23, 1957, police officers in a Cleveland, Ohio suburb received information that a suspect in a bombing case, as well as some illegal betting equipment, might be found in the home of Dollree Mapp. Three officers went to the home and asked for permission to enter, but Mapp refused to admit them without a search warrant. Two officers left, and one remained. Three hours later, the two returned with several other officers. Brandishing a piece of paper, they broke in the door. Mapp asked to see the “warrant” and took it from an officer, putting it in her dress. The officers struggled with Mapp and took the piece of paper away from her. They handcuffed her for being “belligerent.”

Police found neither the bombing suspect nor the betting equipment during their search, but they did discover some pornographic material in a suitcase by Mapp's bed. Mapp said that she had loaned the suitcase to a boarder at one time and that the contents were not her property. She was arrested, prosecuted, found guilty, and sentenced for possession of pornographic material. No search warrant was introduced as evidence at her trial.

In a 6-3 decision, the Court overturned the conviction, and five justices found that the States were bound to exclude evidence seized in violation of the 4th Amendment. In the majority opinion, Justice Tom Clark declared: “We hold that all evidence obtained by searches and seizures in violation of the Constitution [is] inadmissible in a state court…. Were it otherwise…the assurance against unreasonable…searches and seizures would be [meaningless].”

Since then, 1957, the times have changed and so have the courts. Subsequent court decisions have eroded the absoluteness of the exclusionary rule, creating exceptions such as Nix v. Williams, 1984 (inevitable discovery rule), and U.S. v. Leon, 1984 (“good faith” exception)

In general a warrantless search must be a consent search. If there is no search warrant and no consent from someone with proper authority to consent, then the search is an illegal search and a violation of the Fourth Amendment. In the context of automobile searches, the U.S. Supreme Court has recognized several exceptions to the Fourth Amendment’s warrant requirement.  

First, police do not need to obtain a warrant where it is shown that there are exigent circumstances excusing the need to obtain the warrant.

"Exigent circumstances" in this context are defined as follows: A search is reasonable, and a search warrant is not required, if all of the circumstances known to the officer at the time, would cause a reasonable person to believe that entry or search was necessary to prevent physical harm to the officer or other persons/the destruction or concealment of evidence/the escape of a suspect, and if there was insufficient time to get a search warrant.

However, even if there are exigent circumstances, the police must still have probable cause to undertake the search.  Mincey v. Arizona, 437 U.S. 385, 392-93 (1978).  

Second, police may search a vehicle incident to a recent occupant’s arrest when the arrestee is unsecured and within reaching distance of the passenger compartment at the time of the search.  Arizona v. Gant, 129 S. Ct. 1710, 1719 (2009).

Third, under the “automobile exception,” law enforcement officers may undertake a warrantless search of a vehicle if there is probable cause to believe that the automobile contains evidence of criminal activity that the officers are entitled to seize.  See Carroll v. United States, 267 U.S. 132 (1925).  Thus, in United States v. Ross, 456 U.S. 798 (1982) and in California v. Acevedo, 500 U.S. 565 (1991), the Supreme Court held that, under the automobile exception, police officers may undertake a warrantless search of a closed container found in a vehicle when the officers have probable cause to believe that evidence of criminal activity will be found in the container.  

In a recent Florida Supreme Court case, Florida vs. Thomas, 00-391, the court held that because Thomas had gotten out of the car before he had any contact with police, the officers could not automatically search his car after arresting him. Instead, the court said police must show the search was necessary to protect officers’ safety or to preserve evidence.

In that case, Thomas had arrived at a house where officers were present, and got out of his vehicle. An officer met him and asked to see his driver’s license. A license check showed an arrest warrant for a probation violation. The officer arrested Thomas, and a search of his car shortly afterward found plastic bags containing a substance that police said tested positive as methamphetamine.

There is recent and ample case law that addresses exactly how consent can be given, by whom; whether or not consent was coerced; and the validity of probable cause because of a K-9 alerting to a scent.

Our Bill of Rights is still in place, and it is our duty to know and fight for our rights, lest we lose them all.

Two Mysteries of Florida Family Law Rules

In the course of doing business as a legal document preparer, my customers often ask me questions about procedure and why things are the way they are. I am allowed to provide consumers information regarding procedural rules, timelines, etc.; as long as I refrain from offering legal advice. Most people that contact me do not want legal advice anyway, they just don't know how to fill out the forms. And that's why we're here. The reason for this entire industry is that consumers either don't know how to prepare their own documents, don't have the time, or cannot possibly afford an attorney. A large part of the documents I prepare are family law documents, such as divorces, and supplemental petitions for modification of existing orders.

Mystery Number One:

If a couple is divorcing, they have no children, and they have already split all their assets, why does the State of Florida require a family law financial affidavit?

This is a basic divorce scenario where both parties want to go their separate ways, and have no disputes over anything. In the past couple of years, the requirement for a financial affidavit in a Simplified Dissolution of Marriage (which has never been so simple in my opinion - and I rarely have a request for these forms) changed so that divorcing couples using the simplified process can waive the financial affidavit requirement. However, the huge drawback for couples using the simplified process is that they both must appear in court. And, although, they may not have any disputes over property or children, they still may not want to be in the same room together ever again, and they may not be sure that the other party is going to be completely reliable, and if the other party doesn't show up, then there will be no divorce. And they will very likely have to pay another filing fee to get the divorce completed. So, many couples who qualify for the simplified process, use a petition for dissolution with no children and no property instead. That way, the more motivated party, can make sure he or she is the petitioner, and make sure that the divorce is completed, and the marriage is done and over, regardless of whether the other party cooperates or not. But, these couples are required to file a financial affidavit. Why? Customers ask me all the time. And my only answer is that the State of Florida says so, and beyond that I have no idea.

I recently helped a customer whose ex-husband to be lives in another country. No children, no assets, no debt. She sent him the divorce petition and an answer and waiver of appearance for him to sign. Which he did. But, when she tried to schedule a hearing, the clerk of court refused to schedule it because her husband had not filed a financial affidavit. And then the clerk of court directed her to file a motion to compel him to file a financial affidavit. Since he is in another country how can the State of Florida compel him to do anything? Sounds like a legal question, and I have no idea what the answer is. The bigger question is the central mystery here. Why is it the business of the State of Florida to know the financial information of a consumer, just because they are going through a divorce? If you know the answer, please comment.

Mystery Number Two:

This second mystery is much worse. Frequently, when unwed parents part company the mother (usually) files for child support through the Florida Department of Revenue. The father receives a notice in the mail that he must appear for the child support hearing and to bring all his pay stubs and proof of income. Many fathers are happy to go because they think that they can also request child visitation (timesharing) at the same hearing. Au contraire mon frere! However, most of the time these hearings are held before a General Magistrate, not a Judge. A General Magistrate also called a Hearing Officer is usually an attorney appointed by the Chief Judge to hear uncontested family law matters. So when the parties go in front of the General Magistrate, the court's assumption is that there is no dispute. The father owes child support, and that's the end of it. The General Magistrate is not allowed to hear any disputes, not allowed to hear anything related to child visitation, and the fathers come out of those hearings with their heads reeling. When the father tries to bring up child visitation or custody, the General Magistrate refuses to hear it. Most often the General Magistrate does not explain to the father why he can't hear it (because he's not allowed to); and doesn't tell the father what he can do to make sure that he has the legal right to see his own children and not be treated like an ATM.

Why does the State of Florida persist in allowing the fathers to be treated this way? If you know the answer as to the why, please comment.

There is a solution, however, and I truly hope this is helpful to someone. If you are caught in the situation described above: File a Petition to Determine Paternity and Related Relief; and a proposed Parenting Plan. The outcome will be an order naming you as the legal father, with the legal right to spend time with your children. The Parenting Plan is the schedule of visitation.

Contract for Deed - Not the Way to Buy Florida Real Estate

Back in real estate school we learned that buying real property with a contract for deed, which is also called a land contract, or installment contract -- is a bad idea. However, leave it to the enterprising lenders of our times, and you see this bad idea popping up all over again. A contract for deed is not a mortgage. The buyer does not receive a deed to the property until the debt is paid in full. The transaction is more like buying a car than buying a house. When you make installment payments on a car, a lien remains on your car until you pay it off. Contract for deed is the same. With a mortgage the buyer receives a deed the day of closing.

From a buyer's point of view, one of the main problems with a contract for deed is that the seller might die before the final payment and obtaining the deed may be difficult.

Right of Cancellation

• Under Florida's Title XXXIII Regulations of Trade, Commerce, Investments and Solicitations, Section 498.028, the buyer of a land contract has the right to go back on the agreement for whatever reason within a seven-business-day period from the execution date of the contract. If a buyer exercises this right, the seller must reimburse the buyer all funds and fees within 20 days of receiving the cancellation notice. Notice land contract sellers cannot charge buyers with any penalty or obligation if they decide to exercise their right of cancellation.
  

Notice of Assignment of Contract for Deed

• In Florida the seller of a contract for deed can sell the rights to a property to a third party while the buyer is making payments. However, Florida land contract law requires the seller to provide the buyer with a signed and notarized notice stating the contract for deed has been assigned to another party. The buyer should, from then on, continue making payments to the new owner of the land contract.
  

Another pitfall with a contract for deed is that the underlying loan can be called due by the lender under the “due on sale” provision of the mortgage.  If the underlying mortgage is being paid timely, this scenario is unlikely, but still possible. Sellers who enter into contract for deed may be unaware that according to Florida law, a purchaser of real estate who defaults on a contract for deed, must be foreclosed upon just as if it were a mortgage.

In my opinion the pitfalls far outweigh the benefits for either party.

Remember these times? Before the bubble burst ...

Even before the real estate market devolved into what it is today, there were conflicting opinions about how long the boom would last. All agreed that it wouldn't last forever, just when the market would fall apart no one could know. The following are snippets of articles found online dating from 2004 and 2005.

2004

Want to Invest? Join the Club.

By VIVIAN MARINO

Published: October 31, 2004

"As a mortgage broker, Richard Banach helped many investors finance real estate deals over the years, but when it came to his own money, he stayed mostly with stocks, a strategy he has grown to regret. "I've seen people with marginal credit and modest means making big money in real estate," he said, while he has watched his technology-heavy portfolio swell, then shrivel.

Now "totally out of stocks," Mr. Banach, 46, who lives in Glen Head, N.Y., said he will focus on real estate. While he has the advantage of knowing something about buying property, he realizes that finding good deals won't be easy in a still-rising market crammed with other stock market refugees. So last year he joined the Long Island Investors Group, a club that serves both as an informal repository of information about properties for sale and as a support group."

---

Lost in the Super Market

"The housing situation is tight. How tight? Let’s put it this way: If you’re able to go see a house at midnight, do it. It may be gone in the morning."

By Carl Swanson

"You should've bought last summer. Or better yet, last spring—the last time property stayed on the market and prices were negotiable.

When the family that owned the nine-room co-op, smack in the middle of the investment-banker promised land that is Park Avenue in the Seventies, decided to pull up stakes last summer, they put their price at $3.6 million. That was in August, and the number was a bit exuberant, given that it had been a slow year so far and the family had lived there for 40 years; the place was more Sister Parrish than Peter Marino.
The bids came in at $3.2 million. “There was resistance” among buyers to paying more, admits Stribling Private Brokerage president Kirk Henckels—especially after the family increased the price 10 percent in September. “But we broke through it.”

Did they ever. After the board rejected one bidder, the apartment went back on the block for $4.25 million in January, where it garnered multiple $4.1 million bids. “That 28 percent increase in five months,” Henckels says, is “as freestanding an increase as you can find.” And thus the bear market—such as it was—is ended."

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Foldvary: The Real Estate Bubble 

Editorial

The Real Estate Bubble

by Fred E. Foldvary, Senior Editor

"The last bottom of the real estate cycle in the US was in 1990, when there was a recession. Real estate prices have been rising since then, and were not at all deterred by the downturn of 2001. Real estate speculation has carried real estate prices in some parts of the US, such as California, to heights that cannot be sustained when interest rates rise as the Federal Reserve reverses its low-interest policy. Another crash is coming.

Henry George, the American economist and social reformer of the latter 1800s, originated one of the first theories of business cycles. The basic cause, he said, was land speculation. During an economic boom, at first, a growing demand for real estate is met by reducing vacancies. But then new real estate is constructed, and rent and land values rise. Speculators notice this and buy land expecting to sell at higher prices later. This speculative demand, added to the demand for use, carries land prices so high that investments in enterprise become unprofitable. Land becomes priced for expected future uses, rather than present-day uses."

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2005

Boom in Jobs, Not Just Houses, as Real Estate Drives Economy

By David Leonhardt 

July 9, 2005

"For all its benefits, the new found power of real estate has also left the country vulnerable to a housing slowdown, which many economists expect over the next few years. Residential housing now makes up 16 percent, or $1.9 trillion, of the gross domestic product and is the economy's largest single sector, slightly bigger than the industries and services that supply health care, according to Economy.com."

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Bernanke: There's No Housing Bubble to Go Bust

By Nell Henderson

Washington Post Staff Writer
Thursday, October 27, 2005

"Ben S. Bernanke does not think the national housing boom is a bubble that is about to burst, he indicated to Congress last week, just a few days before President Bush nominated him to become the next chairman of the Federal Reserve. 

U.S. house prices have risen by nearly 25 percent over the past two years, noted Bernanke, currently chairman of the president's Council of Economic Advisers, in testimony to Congress's Joint Economic Committee. But these increases, he said, "largely reflect strong economic fundamentals," such as strong growth in jobs, incomes and the number of new households".

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Real estate investors cast watchful eye on Las Vegas' high stakes housing game

Kelly Zito, Chronicle Staff Writer

Monday, March 7, 2005

"Las Vegas' lucky number last year was 52 -- as in 52 percent. That's how much real estate prices jumped in the nation's fastest-growing city in one year, as a housing shortage set off a wave of speculation by investors from California and other states. 

But as any gambler knows, Lady Luck eventually turns a cold shoulder. Las Vegans wanted to cash in, too, and so many put their houses up for sale that they flooded the market. By the end of the year, some home builders were slashing prices".

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Apparently it doesn't matter ...

Apparently it doesn't matter to our government that the wealth of our citizens is being systematically depleted by the banks and our government who allow them to proceed. Apparently the fact that many of the lenders have no real claim to the property for which they pursue foreclosure is of no consequence. Case in point, a representative of JP Morgan Chase admitted in a deposition which is part of the Federal Court record in that case, that JP Morgan Chase never actually received the mortgage notes supposedly transferred from Washington Mutual. Apparently it doesn't matter that this fact, and it is now accepted as fact, continues to be ignored by the circuit courts. And foreclosures continue with the named plaintiff, JP Morgan Chase as Successor in Interest for Washington Mutual, even though it isn't true.

In Federal Court, the sworn deposition testimony of Lawrence Nardi, the operations unit manager and a mortgage officer for JPM, who was previously with WaMu and was picked up by JPM after WaMu’s failure a representative for JP Morgan Chase, Nardi, admitted that these transfers never took place. See JPMorgan Chase Bank, N.A. as successor in interest to Washington Mutual Bank v. Waisome, Florida 5th Judicial Circuit Case No. 2009-CA-005717. In the deposition entered to the court record of that case:

"(page 261, beginning at line 2): No there is no assignments of mortgage. There’s no allonges. There’s no — in the thousands of loans that I have come into contact with that were a part of this purchase, I’ve never once seen an assignment of mortgage. There is simply not — they don’t exist. Or allonges or anything transferring ownership from WAMU to Chase, in other words. Specifically, endorsements and things like that.
So, JPM allegedly “purchased” mortgage loans from the FDIC out of the WaMu failure, but there is no schedule of what loans were purchased, no assignments, no allonges, no endorsements, nothing that transferred ownership of the loans from WaMu to Chase. However, as we all know, JPM goes around the country touting that it is the “successor in interest to WaMu” (which it has admitted in Federal Court that it is not) and relies on the amorphous “FDIC Affidavit” which, as far as what the “Affidavit” is proffered for, is directly contradicted by the sworn deposition testimony of JPM’s authorized representative WHO WAS FORMERLY WITH WAMU AND WAS PICKED UP BY JPM."

And further, apparently it doesn't matter that the Department of Justice went to all the trouble of hammering out a National Mortgage Settlement Agreement. Because, that, also is being systematically ignored by the banks. Dual tracking continues as it always has. The homeowner in good faith enters into mortgage modification with their lender or servicer or whoever offers a modification, provides to them an endless stream of documents, only to find themselves facing foreclosure anyway. 

It  MATTERS!

Be Ever Vigilant in 2014

Mainstream media's steady drum beat -- the economy has recovered – the Great Recession is over.. Unemployment is down. Home sales are up. GDP is expanding. In 1995, the Atlantic Monthly online published an article titled - “If the GDP is Up, Why is America Down?”Good question then, an even better question now.

GDP – Gross Domestic Product – is the primary indicator of economic well being. GDP measures all economic activity of a given economy, the United States, for example. It is a clumsy method of measurement. Since GDP includes all economic activity, productive and destructive economic activity are added together and dumped in the same pot. Increased medical costs; ever larger law enforcement budgets; building more prisons; cigarette sales; alcohol sales; gambling; strip clubs; promotion of fast food and unhealthy foods; spending for deferred maintenance of infrastructure. Citizens are consumers. We are no longer producers. Everything is monetized. The things that families and communities do for each other, are never measured at all. The intangible, the free assistance, the neighbor to neighbor help is never included, never measured, never mentioned.

Unemployment – According to mainstream media Florida unemployment is at 6.4% - not bad. However, my sources tell me that the quality of the jobs is sub par. There are many part time workers, not out of choice, but because part time work is all they could find. Others are underemployed, college graduates working at low level jobs, because that's all there was available. If you don't have a connection, a relative who owns a business or can influence hiring it's tough. Hardest hit are the twenty somethings who are now competing with older more experienced workers for the same low paying job. And don't forget all those who have given up hope of ever finding work, and rely on their family, government, or the underground economy to support themselves.

Housing Market – According to mainstream media, the Florida housing market has recovered; or at the very least is well on its way to recovery. There is a shortage of inventory (that's houses). Interest rates are low. Around two thirds of home buyers pay cash. However, there is a second side to each and every one of these statements. The inventory shortage is caused by the lack of new construction due to the lack of demand; and foreclosed and bank owned homes that were allowed to deteriorate after the homeowners left. Cash is king in home buying, and much of the cash is foreign cash. Even Florida residents with good credit who easily qualify for a new mortgage are edged out by a cash buyer. And interest rates are still low, Except for government backed loan programs like FHA and VA, home buyers need a credit score of at least 620. For some people, a 620 credit score may be easy to achieve, however, many people took a credit score beating due to job loss, causing a domino effect to their personal finances. And although, as the Miami Herald reported in August 2013, that new foreclosure filings were down in Miami-Dade and Broward Counties, but auction notices and bank repossessions were up. More people out of their homes.

My post on this blog – Civil Indigent Status – Florida - – has had more traffic by far, than any of my other posts. Likewise, of the top ten keywords used to reach www.faldp.org – six of them included indigent or indigent status as part of the key word. Our world financial crisis is far from over, although there are pockets of improvement. I have high hopes for this year – and suggest that we all be vigilant. Look past the headlines, ask the questions, show compassion for others, and be ever vigilant in protecting you and yours from financial disaster.