Fourth Amendment to US Constitution up for grabs with Florida case

Christopher Markus

Christopher Markus’ case will be decided by the Florida Supreme Court. (Photo used with permission)

The state of Florida is challenging a First District Court of Appeal reversal on a conviction in a case against a young man named Christopher Markus. While media have covered this case with a few stories, it is obvious those who wrote the stories did not delve into various documents related to the case.

Media parsed it as a case involving possession of cannabis. It is not.

The core issue in dispute is a warrantless search conducted by law enforcement officers at an apartment complex in Jacksonville Beach.  That issue makes it relevant not only to every Floridian, but to all Americans.

I am familiar with this case for two reasons. One, I know Christopher—Chris to his friends—personally. He is engaged to a young woman my daughter has known since high school. Second, as most who read my columns or know me personally are aware, I take the US Constitution and Bill of Rights seriously, one reason I felt as though I’d lost a friend when US Supreme Court Justice Antonin Scalia passed away unexpectedly.

Before I say anything else, I want to make it clear I respect our state attorney general. I voted for her and I largely approve of the job she has done. I simply respectfully disagree with the state on this particular matter. 

I’ve read a number of documents related to this case. I’ve penned letters attesting to Chris’ good character in hopes the case would be resolved favorably. At the same time, I am a supporter of law enforcement in general and believe that what stands between anarchy and peace in a community can be attributed to both law enforcement and the members of the community. So I’m not a bleeding heart when it comes to criminal justice matters.

From the beginning, I believed Chris’ Constitutional rights were violated for one reason. The authorities at the beach had ample opportunity to obtain a search warrant.  They chose not to. I’ve argued the finer points of the case with a couple local lawyers who are not involved with the case in any way. Early on, I said this was a Fourth Amendment issue. They disagreed. For the record (and in the playful spirit of I told you so), I was right.

If you look at the statement of the case and facts from both petitioner [the state of Florida] and respondent [Christopher Markus], the narratives mesh for the most part. Here’s an overview of the relevant facts:

*On the evening in question, Chris was standing with some friends in the parking lot of the apartment complex where he lived. The state asserted one man “was drinking what appeared to be an alcoholic beverage.”

*A uniformed officer came up to the men. The state said, “Respondent, who was smoking what appeared to be a cigarette, turned around and flicked the cigarette under the truck while exhaling smoke.” The officer claimed he “smelled the odor of cannabis” and “then asked Respondent to speak with him.” Respondent started backing away into a driveway,” and the officer again asked him to stop.

*The state’s brief asserts Chris then “turned around and ran toward the open garage.”

That last assertion is where things get quite troublesome. Chris’ defense team included relevant information vital to this case. While the officer “testified that Mr. Markus ran towards the garage,” there is a contradiction in the record:

“In preparing his report on the night of the incident, he never referenced Mr. Markus running anywhere, and indeed, noted that Mr. Markus walked backwards in the garage.

What happened next? Chris sat down on a couch in the garage—it was fixed up like a sitting room of sorts, with couches, a pool table, a coffee table and such. Chris kept his hands in the air.

And that, in my opinion, is the point where law enforcement should have obtained a warrant in order to pursue their interests. Why?

It was dark outside. The policeman, at a distance, would have to have eagle eyes to have an idea what Chris was smoking or what the other men were drinking. It’s a given policemen will often say they believe they smell cannabis—that opens the door to other actions. But this was Jax Beach at night in an area where many young people live. Take a stroll in areas like this and you may indeed smell what you think is cannabis, but pinpointing where that is coming from in an area where a sea breeze is common is very tricky.

Once Chris entered the dwelling (he lived there), he was in plain sight of the officers. He was not fleeing and could not without the officers knowing it. None of the inhabitants were screaming for assistance. There was no danger of any kind to the community. That the officers chose to enter and conduct a search without a warrant was, in my opinion, most imprudent.

The initial circumstances arose because officers were in the area to address a noise complaint at an apartment not related to Chris or his friends.

No gunshots were fired. No property was being damaged or in peril. No person was in immediate danger to life and limb. Chris was in plain view inside the dwelling. He could not flee.

While the officer believed Chris was smoking a cannabis cigarette, no baggies or exchange of illegal goods occurred as was the situation with one case the state cited in an effort to justify the search.

We are in our country experiencing what more than one scholar has called a “Constitutional Crisis.” We are frequently reminded of that at the federal level in our executive branch. In Florida, I am in hopes we do not permit limits on government power to be eroded as seriously as they have been at the federal level. The Fourth Amendment is clear on “The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures.”

The remarkable founders of our country and our Constitution and Bill of Rights, however, decided to bear down on that right by adding the right “shall not be violated.” A warrant can only be issued on probable cause.

There was no warrant. There was ample opportunity for a warrant. That is what the whole case hinges on.

Chris’ defense made a more persuasive case than the state. The state did cite previous cases where decisions on warrantless searches were upheld—those cases involved potential and obvious threats to the public. This case does not. As an aside, I don’t believe Jacksonville’s police would have acted in the manner the beach authorities did. For one thing, our sheriff’s department has its hands full and tends to focus on threats to the public. So there may be a difference in perceptions between a police force in a small community compared to one in a large city like Jax.

I’m not sure why my home state is rolling resources into persisting with this case. I believe once Chris backed into his apartment, anything discovered beyond that point in time without a warrant bears no consideration.

The Bill of Rights is a treasure to every single American. Florida’s Constitution echoes many of the tenets of the BOR as well as the US Constitution. Two sections of Florida’s Constitution apply here:

SECTION 9. Due process.—No person shall be deprived of life, liberty or property without due process of law…

SECTION 12. Searches and seizures.—The right of the people to be secure in their persons, houses, papers and effects against unreasonable searches and seizures, and against the unreasonable interception of private communications by any means, shall not be violated. No warrant shall be issued except upon probable cause, supported by affidavit, particularly describing the place or places to be searched, the person or persons, thing or things to be seized, the communication to be intercepted, and the nature of evidence to be obtained. This right shall be construed in conformity with the 4th Amendment to the United States Constitution, as interpreted by the United States Supreme Court. Articles or information obtained in violation of this right shall not be admissible in evidence if such articles or information would be inadmissible under decisions of the United States Supreme Court construing the 4th Amendment to the United States Constitution.

I mentioned the passing of Justice Scalia. I admired him and trusted him more than the majority of his fellow justices. He wasn’t just a literalist in terms of interpreting the Constitution. He carefully considered all aspects of various cases as they related to limits on government powers established in some of the most amazing documents mankind has ever created. His allegiance to the Bill of Rights, Amendment 4 in particular, is well known and admired even by left of center scholars and pundits.

I believe Scalia would have tossed the beach policeman’s attempts to justify the search of Chris’ abode straight into the trash can. If you compare arguments from both sides in this dispute, there is simply no way law enforcement can justify not obtaining a search warrant.

Florida Supreme Court

State of Florida Supreme Court (official photo, Florida government)

As I said earlier, yes, I know Chris personally. But a stroll through my various writings will indicate I would take the same stance whether I knew him or not. I hope the Florida Supreme Court rules wisely on this case. Otherwise, you are not secure in your person, home, or property simply based on suspicion you have committed a minor misdeed which opens the door to authorities entering and searching based on the slimmest suspicions.

A final thought. Many parse the 4th Amendment as the “right to privacy” amendment. It is not. That amendment is a right to property amendment and if it continues to be eroded, our problems as a society and a community will continue to expand.

Scalia once wrote:

“[W]hen it comes to the Fourth Amendment, the home is first among equals.”

As many on the left deride their opposition who mourn Scalia’s passing because many leftists view him as a conservative, they might want to consider his positions not only on Amendment 4 but on others like Amendment 1. The Bill of Rights is the firewall between liberty and tyranny, and we should treasure it as we do the property the people have a right “to be secure in”,  whether that property is our body or our home. Chris’ case, if not resolved in favor of the spirit of the 4th Amendment, would set a volatile precedent for future cases. I hope the court rules wisely on the side of liberty and justice in their forthcoming decision.

(Commentary by Kay B. Day/Feb. 16, 2016)

About Kay Day

Kay B. Day is a freelance writer who has published in national and international magazines and websites. The author of 3 books, her work is anthologized in textbooks and collections. She has won awards for poetry, nonfiction and fiction. Day is a member of the American Society of Journalists and Authors and the Authors Guild.
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