State v. M. H.; Case No. 482011CF000277 (Orange County)
Count 1 – Possession of Weapon in Commission of a Felony.
Count 2 – Possession of Cannabis with Intent to Sell or Deliver.
Count 3 – Possession of More than 20 Grams of Cannabis.
Count 4 – Possession of Drug Paraphernalia.
Count 5 – Carrying a Concealed Weapon .
Arresting Agency: Orlando Police Department
Case Summary: Our client was -officially- stopped by six members of the Orlando Police Department TASK force (drug interdiction team) because he was riding his skateboard on the sidewalk, in violation a local ordinance that has been on the books for over two decades. This ordinance (No. 43.73) purports to make it a 2nd Degree misdemeanor to ride a skateboard in a public places inside the city limits of Orlando. After they stopped my client, they searched his backpack without his consent. They found a bunch of marijuana, scales, a large knife, and cell phone messages indicative of drug dealing. The police tried to justify this search because it was incident to a lawful arrest. We rejected a plea offer for time served, filed a motion to suppress and cited numerous cases at the hearing that argued that a local ordinance can not preempt state law. If the penalties associated with specific conduct are conflicting between local and state law, state law always preempts local legislation. The police and prosecutor were shocked to find out that skateboarding is governed by Chapter 316, a Florida State Statute, which specifically makes a skateboarding violation a non-criminal infraction. Thus, the Orlando police had no authority to search our client incident to a lawful arrest, because the arrest was unlawful.
Result: Motion to Suppress was granted, the Orlando City Skateboarding Ordinance was declared Unconstitutional, and the State dropped all charges without appealing the ruling.
Brian Mallonee is a Criminal Defense Lawyer Serving St Lucie, Indian River, Martin, and Okeechobee Counties