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EFF: Radical Library/Publisher and Prison Support Group Settle Lawsuit with FBI and UC-Berkeley Police over Improper Raid
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Berkeley, CA - Two radical groups have settled their lawsuits over an armed, over-broad police raid after the law enforcement agencies agreed to delete improperly seized computer data and pay $100,000 in damages and attorney's fees. Moreover, the University of California-Berkeley Police Department (UCBPD) acknowledged that at the time of the raid one of the groups qualified for federal protections designed to protect journalists, publishers, and other distributors of information from police searches, despite the police's persistent denial of that status throughout the lawsuit.

Law.com: Can the Government Force the Surrender of Encryption Keys? by Joshua A. Engel:

Encrypted data is accessible only through the use of a password or encryption key, and this encryption raises several questions. What happens when the government wants to read encrypted documents? Can the government make you turn over your password or encryption key? Does the right to remain silent or the privilege against self-incrimination provide any protection? Some believe that the answer to this question may be one of the most important technology-related legal questions of the next decade.

In a number of cases starting to wind through state and federal courts, the government has sought to compel suspects to provide passwords and encryption keys despite claims of Fifth Amendment privilege by witnesses and suspects. This issue has appeared infrequently in courts. However, a decision last month by the U.S. Court of Appeals for the Eleventh Circuit, United States v. John Doe, has started to provide some guidance. The court concluded that the Fifth Amendment privilege applied because the provision of this information is essentially an admission that the person had possession and control over, and access to, the computer, files, or data.

The court rejects the government’s contention that an arrest warrant for a suspect causes him to not have a standing in hotel room where he was located. At any rate, defendant was arrested in the hallway, but his companion opened the hotel room door to see what was going on outside, and that made a protective sweep reasonable. United States v. Marrero, 2012 U.S. Dist. LEXIS 49494 (S.D. Ind. April 6, 2012).*

The warrant for child pornography was based on an IP address, and probable cause was shown, so the good faith exception need not be reached. [The USMJ seems uncomfortable with the fact that he issued the search warrant, too, but his decision is subject to de novo review. United States v. Nolan, 2012 U.S. Dist. LEXIS 50046 (E.D. Mo. March 6, 2012).*

A knock-and-talk does not violate the Fourth Amendment, and defendant consented to a search. United States v. Major, 2012 U.S. Dist. LEXIS 49665 (W.D. La. February 16, 2012).*

Grand Junction: DA: Search central in State Trooper’s trial by Paul Shockley:

District Attorney Pete Hautzinger carried the unhinged front door that once stood at the Redlands home — splintered at an end and black shoe prints from police officers’ kicks elsewhere — into a courtroom today as the prosecution told jurors that the Fourth Amendment to U.S. Constitution was front and center in the trial of Colorado State Patrol trooper Ivan “Gene” Lawyer, who’s charged in the shooting death of 31-year-old Jason Kemp.

He told them to get a search warrant, prosecutors said.

“Jason Kemp died demanding his constitutional rights be honored,” Deputy District Attorney Todd Hildebrandt said during opening statements in Lawyer’s trial. “And the only force he (Kemp) used was trying to prevent them from coming inside his home.”

Kemp would have been justified that day in defending his home with deadly force as allowed under the doctrine of Colorado’s Make My Day law, the prosecutor told jurors.

“That force can be applied against a police officer,” Hildebrandt said.

In a search warrant for alleged stolen heavy equipment, automatic weapons were not “immediately apparent” for plain view purposes. They usually aren’t, especially without nexus being shown. United States v. Lamb, 2012 U.S. Dist. LEXIS 49155 (S.D. Ohio April 6, 2012):

The Government has, however, failed the third prong of the plain view analysis because it cannot demonstrate that the illegality of the automatic guns was immediately apparent. "Because the plain view doctrine supplants the need for a particularized warrant, the 'immediately apparent' requirement is necessary to prevent officers from using the plain view doctrine as a means to extend a particularized search authorized by the Fourth Amendment principles into an unlawful exploratory search." Garcia, 496 F.3d at 510.

Under the "immediately apparent" prong, "multiple factors may be taken into account, none of which are necessary, but each of which are instructive." Carmack, 426 F. App'x. at 382. Courts should consider: (1) the nexus between the seized object and the items particularized in the warrant; (2) whether the intrinsic nature or appearance of the object gives probable cause to believe it is associated with criminal activity; (3) whether the officer, at the time of the discovery of the object and with the facts then available, can determine probable cause of the object's incriminating nature; and; (4) whether the officer can recognize the incriminating nature of the object as the result of his instantaneous sensory perception, as opposed to further investigation. Id.; Garcia, 496 F.3d at 510. "Probable cause does not require knowledge that the evidence is contraband." Carmack, 426 F. App'x at 382. Instead, it requires that the available facts would warrant a man of reasonable caution in the belief that it may be contraband. Id.

Here, the first factor weighs in favor of suppression. There was no nexus between the guns seized and the documents or computer accessories authorized in the warrant. Nothing in the warrant or the affidavit suggests guns were used in the alleged theft.3 To the extent the officers were aware of the shooting that occurred on the property earlier that morning, they were likely also aware the shooting involved a handgun, not an automatic machine gun. Furthermore, there was no testimony that the guns were seized in connection with the earlier shooting; they were seized because they were found to be automatic.

3 Some district courts in the Sixth Circuit have found the incriminating nature of a machine gun was immediately apparent for purposes of the plain view exception where the gun had a connection to the alleged crime. See United States v. Jefferson, 717 F. Supp. 2d 790, 804 (S.D. Ohio 2010) (finding incriminating nature of AK-47 immediately apparent where police were investigating a homicide involving a firearm); United States v. Case, No. 2:07-CR-111, 2008 WL 4865967, at *9 (E.D. Tenn. 2008) (finding that if the plain view exception were applied, the incriminating nature of a machine gun is immediately apparent where there was a nexus between guns and narcotics crimes). Here, there was no nexus between the alleged crime and the guns in this case, and therefore, within the context of the search, the illegal nature of the guns was not immediately apparent.

Under the second factor, neither the intrinsic nature nor the appearance of the guns gave probable cause to believe they were illegal automatic weapons. The United States Court of Appeals for the Sixth Circuit has held the incriminating nature of certain weapons and accessories, such as sawed-off shotguns and silencers, is immediately apparent. See, e.g., Carmack, 426 F. App'x at 383 (citing cases establishing the immediately apparent incriminating nature of sawed-off shotguns); United States v. Poulos, 895 F.2d 1113, 1122 (6th Cir. 1990), abrogated on other grounds by United States v. Horton, 496 U.S. 128 (1990) ("[S]ilencers, like sawed-off shotguns, are not 'intrinsically innocent' objects and their possession is a serious crime except under 'extraordinary circumstances.'").

There is, however, a distinction between silencers and sawed-off shotguns on the one hand, and automatic weapons on the other. The Sixth Circuit has held that the incriminating nature of automatic weapons is not immediately apparent. United States v. Tatman, 397 F. App'x. 152, 175-77 (6th Cir. 2010) (finding incriminating nature of automatic weapons parts kit not immediately apparent); United States v. Szymkowiak, 727 F.2d 95, 99 (6th Cir. 1984) (suppressing assault rifle where the officers could not tell by looking at the rifle whether it was automatic); United States v. Gray, 484 F.2d 352, 355 (6th Cir. 1973) (finding stolen rifles did not fall under the plain view exception). Therefore, the illegality of an automatic gun is not immediately apparent, and factor two also weighs in favor of suppression.

Plaintiff claimed that the Department of Defense stole his intellectual property, and he filed suit alleging, inter alia, a Fourth Amendment claim, which was rejected because there was no search and seizure. “Because there are elaborate remedial systems already set up for wrongful appropriations of intellectual property, a Fourth Amendment constitutional remedy is not available for Plaintiffs' claims.” Pearlstein v. United States Dept. of Defense, 2012 U.S. Dist. LEXIS 49235 (D. Ariz. April 9, 2012).

Where the officers have probable cause to believe there are drugs in the car, defendant’s arrest on a felony drug warrant justified a search of the car under the automobile exception, and Gant was inapplicable. United States v. Fox, 2012 U.S. Dist. LEXIS 48966 (W.D. Mo. February 23, 2012).*

Hot pursuit of fleeing felon from a hand-to-hand drug transaction into an apartment justified entry into the apartment. Also, raising a new argument during the closing argument of the suppression hearing was inadequate to raise the issue because the government didn’t get to respond. United States v. Thompson, 2012 U.S. Dist. LEXIS 49472 (N.D. Tex. April 9, 2012):

The Supreme Court and the Fifth Circuit recognize that the hot pursuit of a fleeing felon is an exigency justifying a warrantless search and arrest. United States v. Santana, 427 U.S. 38, 43 (1976) ("[A] suspect may not defeat an arrest which has been set in motion in a public place ... by the expedient of escaping to a private place."); Payne v. City of Olive Branch, 130 Fed. Appx. 656, 662 (5th Cir. 2005) (per curiam) ("'Hot pursuit' of a suspect is recognized as an exigency justifying a warrantless search.") (citing Santana, 427 U.S. at 41-43 & n.3).

In addition, the warrantless search was justified by the need to preserve evidence. "[T]he need to prevent the imminent destruction of evidence has long been recognized as a sufficient justification for a warrantless search." Kentucky v. King, __ U.S. __, 131 S. Ct. 1849, 1856 (2011) (internal quotation marks omitted) (citing cases). As explained above, the officers had background knowledge that drugs were being sold out of apartments located at the Complex. They had just witnessed Thompson engage in what they believed to be a hand-to-hand drug transaction, and Thompson fled to his apartment and locked the doors after the officers unexpectedly arrived on the scene, observed the transaction as it was occurring, and commanded him to stop when he fled. Thompson was aware that the officers were pursuing him. If he had been selling drugs from his apartment and was still in possession of illegal narcotics, he could have destroyed any evidence of drugs during the time it would have taken the officers to obtain a warrant. ...

Attachment of an unsworn police report to a search warrant affidavit can support probable cause. United States v. Schubert, 2012 U.S. Dist. LEXIS 49270 (E.D. Wis. April 9, 2012):

In State v. Wegrzyn, [751 S.W. 2d 796 (Mo.App. 1988)] the Missouri Court of Appeals held that a deputy sheriff's notarized application for warrant which was based entirely on document signed by police officer that was not dated, not verified by oath, and not properly notarized was sufficient. Similarly, in Commonwealth v. Bass, 24 Mass. App. 972, 512 N.E.2d 519 (1987), an affidavit for a search warrant, properly verified, incorporated the contents of attached documents. The attachments were not in affidavit form. They were not sworn to and they contained no jurat. The trial court held that those deficiencies invalidated the warrant. The Massachusetts Appeals Court reversed that holding and upheld the warrant and the search made pursuant to it. The court held that the attached documents were properly incorporated into the affidavit, itself in proper form, and that it was of no moment that the attachments were not sworn to or contained no jurat. See also People v. Campbell, 678 P.2d 1035, 1040 (Colo. App. 1983) ("However, documents attached to and incorporated in an affidavit by reference need not be sworn to separately and may thus fall within the four corners of the affidavit.").

As a general matter, federal courts, too, have held that attached documents that are properly incorporated into an affidavit can be considered in determining whether probable cause exists and that it is of no moment that the attachments were not sworn to or contained no jurat. See, generally, United States v. McCoy, 781 F.2d 168, 172 (10th Cir. 1985); United States v. Berisford, 750 F.2d 57, 58 (10th Cir. 1984); United States v. One Olivetti Electric 10-Key Adding Machine, 406 F.2d 1167, 1168 (5th Cir. 1969). But in most cases, the attachment is not the sole source of information needed to establish probable cause, or the affiant is the author of or has direct knowledge of the facts set forth in the attachment. Here, there is no showing that Investigator Johnson had any direct knowledge of the facts set forth in the attached report. Yet, it is not uncommon for law enforcement officers to obtain a search warrant based on an affidavit that expressly includes hearsay that is not itself given under oath or affirmation. Police affidavits made in support of search warrant applications generally recount information they obtain from citizen witnesses, other police witnesses, or even unidentified informants. There is no requirement that the affiant have direct knowledge of all of the facts essential to support a finding of probable cause. Nor must the probable cause determination be based only on evidence that would be admissible at trial. Brinegar v. United States, 338 U.S. 160, 173 (1949); see also U.S. v. Ventresca, 380 U.S. 102, 107 (1965) (holding that finding of probable cause may rest upon evidence which is not legally competent in a criminal trial).

Flight + reasonable suspicion = probable cause. United States v. Williams, 2012 U.S. App. LEXIS 7010, 2012 FED App. 0375N (6th Cir. April 6, 2012):

Once Officer Edwards approached Williams and informed him that he was a police officer, Williams fled. Williams continued to run even after being chased and being told to stop multiple times. The officers' reasonable suspicion ripened into probable cause once Williams fled. See Dotson, 49 F.3d at 230-31; McCoy, 155 F. App'x at 201-02; Bowden, 1997 U.S. App. LEXIS 19153, at *9.

Defendant’s “newly discovered evidence” for attempting to reopen the suppression hearing was cumulative at best and would not change the court’s conclusion. United States v. Hawkins, 2012 U.S. Dist. LEXIS 48851 (D. Colo. April 5, 2012).*

Bloomberg: Strip-Search Case Reflects Death of American Privacy By Noah Feldman:

The short answer is that Kennedy couldn’t find a violation of dignity for the petitioner because almost everyone committed to a jail or prison gets similar treatment. (Some states have banned the practice after minor arrests.) Every arrest, even for major offenses, is supposed to take place on the basis of suspicion, not proven guilt. Everyone in jail is equally presumed innocent until proven guilty at trial -- or until he or she admits guilt in a plea bargain. To find that all of these people are having their most basic rights violated every day would have been too disruptive to the basic practices of American criminal justice.

Salon.com: U.S. filmmaker repeatedly detained at border by Glenn Greenwald:

One of the more extreme government abuses of the post-9/11 era targets U.S. citizens re-entering their own country, and it has received far too little attention. With no oversight or legal framework whatsoever, the Department of Homeland Security routinely singles out individuals who are suspected of no crimes, detains them and questions them at the airport, often for hours, when they return to the U.S. after an international trip, and then copies and even seizes their electronic devices (laptops, cameras, cellphones) and other papers (notebooks, journals, credit card receipts), forever storing their contents in government files. No search warrant is needed for any of this. No oversight exists. And there are no apparent constraints on what the U.S. Government can do with regard to whom it decides to target or why.

Plaintiff was civilly committed as a sex offender, and his 161 audio DVDs and CDs were seized to see if they were sexually explicit. It took months to do the review. Because there had been no prior case on it, the officials involved were entitled to qualified immunity. As for the merits, he has a right to the discs, but the institution has an institutional security need to evaluate them for sexually explicit materials. Ahlers v. Rabinowitz, 2012 U.S. App. LEXIS 7035 (2d Cir. April 6, 2012).

This Circuit has not articulated the standard by which to analyze censorship of mail in the civil commitment context. "Restrictions on prisoners' mail are justified only if they 'further[] one or more of the substantial governmental interests of security, order, and rehabilitation ... [and] must be no greater than is necessary or essential to the protection of the particular governmental interest involved.'" Davis v. Goord, 320 F.3d 346, 351 (2d Cir. 2003) (alterations in original) (quoting Washington, 782 F.2d at 1139). With regard to legal mail, "an isolated incident of mail tampering is usually insufficient to establish a constitutional violation. Rather, the inmate must show that prison officials 'regularly and unjustifiably interfered with the incoming legal mail.'" Id. (citations omitted) (quoting Cancel v. Goord, No. 00 CIV 2042 LMM, 2001 WL 303713, at *6 (S.D.N.Y. Mar. 29, 2001)). In the context of civil commitment, this formula is easily adapted. A patient must show regular and unjustifiable interference with incoming legal mail; the actions of facility staff in restricting civilly committed individuals' access to legal mail are justified if they advance or protect the state's interest in security, order, or treatment and the restrictions imposed are no greater than necessary to advance the governmental interest involved.

JSOnline: Beloit to pay $265,000 to settle strip search lawsuit; Milwaukee investigation may leave taxpayers on the hook by Gina Barton:

The City of Beloit has agreed to pay a teenage boy $265,000 to settle a federal lawsuit claiming police violated his constitutional rights by strip-searching him on the street and slamming his head into a car window.

The trial court’s order denying the motion to suppress erroneously put the burden of proof on the defendant to show that a warrantless search was unreasonable. Briggs v. State, 2012 Ark. App. 226, 2012 Ark. App. LEXIS 341 (April 4, 2012):

In so holding, the trial court erred as a matter of law by impermissibly shifting the burden of proof. See Danner v. Discover Bank, 99 Ark. App. 71, 257 S.W.3d 113 (2007). The grounds asserted by appellant, i.e., lack of consent, were presumptively true because all warrantless searches are presumed illegal, and the burden of showing that a search was made pursuant to unequivocal and specific consent rests entirely on the State. State v. Brown, supra. We therefore reverse and remand for the trial court to conduct such further proceedings as are necessary for it to make findings of fact in a manner consistent with this opinion. Because the new findings may differ from those made pursuant to the inverted burden of proof employed in the present case, appellant's constitutional arguments are not ripe for decision, and we therefore do not address them.

Report to the police that a vehicle was stolen was reason to stop it. At the hearing, it was shown that the victim didn’t intend to affect defendant, but the report was relied on in good faith at the time. State v. Mundy, 2012 La. App. LEXIS 442 (La. App. 3d Cir. April 4, 2012).*

Defendant’s refusal of consent did not dispel reasonable suspicion nor mandate ending the stop if there is reasonable suspicion. State v. Gomez, 2012 UT App 102, 2012 Utah App. LEXIS 105 (April 5, 2012):

[*P11] To the extent that Gomez is asserting that his refusal to consent to the search ended the investigation as a matter of law, we do not agree. Courts generally hold that refusal to consent cannot establish or—according to some courts—even support reasonable suspicion. ... The Tenth Circuit has well stated the rationale of these cases: "If refusal of consent were a basis for reasonable suspicion, nothing would be left of Fourth Amendment protections. A motorist who consented to a search could be searched; and a motorist who refused consent could be searched, as well." Santos, 403 F.3d at 1125-26; see also United States v. Hunnicutt, 135 F.3d 1345, 1351 (10th Cir. 1998) ("Any other rule would make a mockery of the reasonable suspicion and probable cause requirements, as well as the consent doctrine.").

[*P12] However, the issue here is not whether refusal to consent supports reasonable suspicion, but whether it dispels reasonable suspicion, or at any rate terminates an officer's attempts to confirm or dispel his or her original reasonable suspicion. On this point, the case law is equally clear. Gomez "cites no case law, and we have found none, that would require [the officer] to ignore all that he had observed and all that he knew up to the moment he asked for consent." See Leal, 235 F. App'x at 940. Indeed, courts routinely hold post-refusal detentions to be supported by pre-refusal reasonable suspicion under an ordinary totality-of-the-circumstances analysis. ... Thus, a brief investigative detention of a suspect who has refused consent, like any other official detention, is lawful to the extent it is supported by reasonable suspicion, and the investigating officer acts diligently to pursue a means of investigation likely to quickly confirm or dispel that suspicion. See Sharpe, 470 U.S. at 686.

[*P13] Nor do we agree with Gomez that, as a factual matter, once he denied consent to search, Officer Speeth "had done all that he could to quickly confirm or dispel his suspicion that Gomez was involved [in] drug trafficking." Gomez's own response to the officer's request suggested a further avenue of investigation. When the officer made the original request, Gomez did not consent, but neither did he categorically refuse consent. He gave a response from which the officer inferred that "some of the other occupants had something incriminating inside the hotel room." That inference cued up the next logical step in the investigation: determining whether Gomez's companions would object to a search of the hotel room. When they disclaimed any interest in the room, the officer again approached Gomez. This time, Gomez consented.

Affidavit for medical records that “might” provide evidence that defendant was DUI was constitutionally insufficient as based on an assumption. It was thus “bare bones” for good faith purposes. Willoughby v. State, 2012 Ga. App. LEXIS 378 (April 5, 2012). [Note: Georgia Court of Appeals cases were only available on LexisOne which ceased April 1. This court now has the distinction of being the only court in America without decisions online.]

Defendant was subjected to a full custodial arrest, so removing a .45 bullet from his pocket was not unreasonable under Terry. United States v. Villa, 2011 U.S. Dist. LEXIS 154625 (N.D. Ga. September 20, 2011), adopted, 2012 U.S. Dist. LEXIS 48448 (N.D. Ga. April 5, 2012).*

Whether the cooperating witness had apparent authority to consent was shown to be a factual dispute that required a hearing[, and the court will tell the parties what the law is in advance]. United States v. Wright, 2012 U.S. Dist. LEXIS 47828 (E.D. N.Y. April 2, 2012)* [Why didn’t the court just let the parties do it? This order is saying there’s a factual dispute for hearing, and there’s been no factual development.]

The defendant consented, and that obviated having to decide whether the third-party consent was valid. Inter alia, the undersigned observes that defendant is an adult, has had previous experience with police and is doubtless familiar with his rights.” United States v. Ray, 2012 U.S. Dist. LEXIS 48391 (E.D. Tenn. March 16, 2012).*

Touching the fog line ("as nearly as practicable within" within the lane) is not reasonable suspicion for a stop in Indiana. United States v. Peters, 2012 U.S. Dist. LEXIS 46977 (S.D. Ind. April 3, 2012)*:

To the extent that the Government argues that probable cause existed because, on one occasion, Officer Borgmann might have reasonably believed that the Denali momentarily and slightly touched the fog line, that argument fails as a matter of law. The statute commands only that drivers drive "as nearly as practicable within" the lane. While no Indiana case has addressed whether briefly touching a fog line violates the statute, courts in other jurisdictions have interpreted similarly worded statutes, and have rejected the Government's argument. See United States v. Colin, 314 F.3d 439, 444 (9th Cir. 2002) (collecting cases holding that momentarily touching but not crossing a dividing line does not violate a statute requiring that a driver drive as "nearly as practical entirely within a single lane." (emphasis omitted)). In opposition to those cases, the Government has collected cases of its own. Those cases are, however, irrelevant. They involve fact patterns involving "erratic" driving across one or both fog lines, ...; or "partially swerving off the roadway," .... No such behavior occurred here.

Defendant as stopped for a traffic offense, but it was quickly learned from the police computer terminal in the patrol car that there was an active warrant for him. The officer never bothered to follow up with the traffic offense, but this was not unreasonable. Defendant’s car would have been left on a busy street, so it was reasonable to tow and inventory it. The fact the search started immediately does not prove that the inventory was pretextual. A printout of the computer readout was admissible in lieu of the warrant because good faith is the only question. State v. Sanders, 2012 Ohio 1540, 2012 Ohio App. LEXIS 1357 (8th Dist. April 5, 2012).*

Defendant agreed to probation with a search at any time provision. The PO showed up at his parents place where he was living, and saw him on the back deck with a friend who hurriedly left. Drugs were validly found in a potted plant. State v. Burns, 2012 Ohio 1529, 2012 Ohio App. LEXIS 1342 (4th Dist. March 29, 2012).*

The officer did not violate the Fourth Amendment by knocking on the window of defendant’s car to wake him. When defendant woke up, he was dazed and confused, and that was reasonable suspicion to go further. State v. Jones, 2012 Ohio 1523, 2012 Ohio App. LEXIS 1337 (4th Dist. March 16, 2012).*

Reason: 7 Rules for Recording Police, Courts are expanding rights but cops are cracking down. Find out how to keep your footage, and yourself, out of trouble by Steve Silverman:

Last week the City of Boston agreed to pay Simon Glik $170,000 in damages and legal fees to settle a civil rights lawsuit stemming from his 2007 felony arrest for videotaping police roughing up a suspect. Prior to the settlement, the First Circuit Court of Appeals unanimously ruled that Glik had a “constitutionally protected right to videotape police carrying out their duties in public.” The Boston Police Department now explicitly instructs its officers not to arrest citizens openly recording them in public.

Slowly but surely the courts are recognizing that recording on-duty police is a protected First Amendment activity. But in the meantime, police around the country continue to intimidate and arrest citizens for doing just that. So if you’re an aspiring cop watcher you must be uniquely prepared to deal with hostile cops.

Consent involuntary after Miranda violation. Defendant sought to ask a lawyer about what he was waiving, and officer kept questioning. Hebron v. State, 2012 Fla. App. LEXIS 5184 (Fla. 4th DCA April 4, 2012):

Defendant: Who can tell me? You got a lawyer here? Can we get a lawyer here that can tell me ... ?
Detective: No, let me ask you this. We don't have any lawyers who work here. Let me ask you this. Was it drug related ...

Seconds later, the defendant consented to police officers searching his apartment which uncovered the physical evidence utilized in the instant case. The defendant raised this issue before the trial court by way of a motion to suppress, arguing that his consent was obtained in violation of his right to counsel.

. . .

In the instant case, the defendant asked a clear question concerning his rights when he asked what his options were, stated that he did not know what the law was and asked "can we get a lawyer here?" The detective merely asserted that there were no lawyers on the staff and failed to provide a "simple and straightforward answer" to the question posed. The officer was required to properly answer the defendant's question regarding his Miranda rights before resuming the interrogation. See Almeida, 737 So. 2d at 525. The failure to stop the interrogation to answer the defendant's question tainted the subsequent consent to search, which, in turn, tainted the evidence seized. Because of this, the evidence discovered during the search of the defendant's apartment should have been suppressed. See Traylor v. State, 596 So. 2d 957, 968 (Fla. 1992) (noting that evidence obtained by the State in contravention of the right to counsel may not be used by the State). Because the physical evidence uncovered in the apartment was so important to the prosecution's case, we cannot find that "there is no reasonable possibility that the error contributed to the conviction." State v. DiGuilio, 491 So. 2d 1129, 1135 (Fla. 1986).