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In Florida, a person enjoys special protection from illegal searches and seizures in his/her home or other residence. At a minimum, this means that police officers and other agents of the state cannot just come into a person’s residence looking for evidence of criminal activity without a search warrant or valid consent from someone who is authorized to provide consent.  However, there are exceptions to this rule that would allow a police officer or other state agent to come into a person’s home.  If they find illegal items such as guns or drugs once they are legally inside the residence, a criminal investigation can initiate.

In a recent case south of Jacksonville, Florida, firefighters and police officers responded to a fire in the suspect’s residence.  Police and firefighters are permitted to enter someone’s home without consent or a search warrant to deal with an emergency health or hazard issue like a fire.  Of course, they must do so only for the purpose of assisting with the emergency and not for the purpose of looking for evidence of a crime.  However, if they see evidence of a crime while in one’s home for other purposes, they are not required to ignore it.  In this case, the firefighters entered and exited the house through the garage.  While doing so, they saw drug paraphernalia on a table in plain view in the garage.  After seeing the drug paraphernalia, the firefighters went back inside to make sure there was no additional fire threat and saw marijuana in a closet.  They informed the police who detained the defendant.  The police officers requested consent to search the house from the defendant.  When the police searched the house, they found more marijuana, guns and drug paraphernalia.  The defendant was arrested for possession of a firearm by a convicted felon and possession of marijuana with the intent to distribute.

The criminal defense lawyer filed a motion to suppress the evidence of the marijuana, guns and drug paraphernalia arguing that the police did not have a legal basis (a search warrant or valid consent before the defendant was detained) to search the house.  The court found that the search and seizure related to the marijuana and drug paraphernalia were legitimate.  The firefighters had a legal basis to be inside the house putting out the fire, and they saw the marijuana and drug paraphernalia in plain view while legally in the house.  They had a right to inform the police about those items.  On the other hand, the guns and items found after the defendant was detained and the police searched the house were suppressed.  At that point, the police were obligated to get a search warrant to search the house for additional evidence.  They never attempted to do so.  As a result, the defendant could be charged with possession of marijuana with intent to distribute and possession of drug paraphernalia, but the state could not go forward with any charges related to the guns due to the illegal search.

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In Florida, a theft is a felony offense, known as grand theft, if the value of the property stolen was $300 or more.  If the value of the property is significantly higher, the offense can be a second degree felony or a first degree felony depending on the circumstances.  If the value of the property is less than $300, the offense is a misdemeanor.  Therefore, when someone commits a theft, the level of the crime and how serious it is depends heavily on the value of the property stolen.  It is up to the state to prove that value beyond a reasonable doubt.  If the state cannot prove the value of the property is $300 or more, the offense will be a misdemeanor even if it seems obvious that the property is more valuable.

For example, in a recent theft case near Jacksonville, Florida, the defendant stole some used fencing material from a business.  The fencing material was old and had not been in use recently, so the business did not know its value or what they paid for it.  At the trial, the state did not present any evidence of the market value of the fencing but did have someone from a hardware store testify that the replacement value of the fencing was $450.  Based on that testimony, the defendant was convicted of grand theft.

The criminal defense attorney appealed the grand theft conviction and won.  According to the Florida theft statute, the state must prove beyond a reasonable doubt what the market value of the stolen property was at the time it was stolen.  If for some legitimate reason the state cannot determine the market value at the time of the theft, the state can rely on the replacement value of the property near the time of the offense.  In this case, the state did not attempt to prove the market value of the stolen property.  The state also did not establish why they were unable to prove the market value.  Without such proof of why they could not determine market value, the state was not permitted to use replacement value instead.  Additionally, the witness who testified about replacement value did not adequately prove replacement value.  The evidence of replacement value has to relate to similar property around the time of the theft.  The state must have some evidence of the condition of the property when it was stolen and/or how new the property was.  For instance, if used fencing material was stolen some time ago, the state cannot just being in a witness to say what new fencing would cost today.  The state must offer evidence of what used fencing materials would cost similar to what was stolen.

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A recent encounter between a suspect and a police officer near Jacksonville, Florida illustrates that police do not have free reign to question suspects and detain them based on mere suspicions or the fact that they do not like a person’s answers.  In light of recent police shootings and some people’s automatic defense of police regardless of the facts or the relevant law, it seems as if some people believe that it is the obligation of citizens to comply with police no matter how unlawful the police conduct might be.

In a recent cocaine possession case, a police officer observed the suspect standing next to a car in the middle of the road.  When the police officer approached, the car fled but the suspect remained on foot.  The police officer asked the suspect his name, and he gave a name that the police officer later determined was a false name.  Once the police officer ran the name and checked with another individual nearby who knew the suspect, he determined that the name was false.  He arrested the suspect at that time.  After the arrest, the police officer searched the suspect and found that he was in possession of cocaine.  After arresting the suspect for possession of cocaine, he got the suspect’s true name and learned that he had a separate felony warrant outstanding.

The criminal defense lawyer filed a motion to suppress the evidence of the cocaine based on the fact that the defendant was illegally detained and illegally arrested.  The appellate court agreed.  The defendant was not breaking the law when the police officer approached him.  The police officer is permitted to ask questions of anyone, but when the defendant gave a false name, that was not against the law either.  Giving a false name can be a misdemeanor crime in Florida, but only if the defendant was lawfully detained or arrested at the time.  At the time the defendant gave the false name, the police officer did not have any legal reason to detain or arrest him.  Therefore, giving a false name at that time was not a crime under Florida law.

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In Florida, it is a crime to make a threat to kill or cause bodily injury to someone or someone’s family member.  In fact, it is a very serious second degree felony punishable by up to 15 years in prison if the threat is communicated to the victim or his/her family in writing.  With the popularity of social media and sites like Facebook, Twitter and many other sites that allow people to communicate with others over the internet, people should understand that “in writing” includes electronic communications.  Therefore, a person could make a threat over Facebook to kill or injure someone and send it to the other person and face a serious felony charge as a result.  These “written” threats are more serious than verbal threats under Florida law, and of course, generally easier to prove.

There are some limitations to this law.  In a recent case near Jacksonville, Florida, a defendant sent out a post on Twitter saying he was going to shoot up his school.  When someone sends such a post on Twitter, anyone following the author can see it, and those people can send the post to anyone else.  In theory, anyone on Twitter could eventually see the post and where it came from.

Not surprisingly, this post made the rounds, and the kid who wrote and sent it was arrested for making written threats, but not before the school was notified, the students were evacuated and many police officers responded to the school.

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In Florida, a police officer is not normally permitted to arrest a person for DUI (driving under the influence of alcohol or drugs) unless the police officer observes the suspect actually commit the crime.  This applies to standard DUI’s, not DUI’s involving an accident.  This is not an issue in most DUI cases in Florida as DUI arrests are usually the result of a traffic stop after the police officer claims to observe the driver commit some traffic violation.

However, there are situations where a police officer comes upon a person he/she believes to be impaired, but the driver is no longer operating the vehicle or in actual physical control of the vehicle (usually characterized as being inside the vehicle in the driver’s seat with the keys).  In these cases, the police officer may not be able to make a DUI case even if he/she has reason to believe the suspect was recently driving the vehicle while impaired from alcohol or drugs.

For instance, in a DUI case just south of Jacksonville, Florida, a witness observed the suspect driving erratically and then come to a stop in the roadway.  The witness was in the medical field and decided to stop and see if the driver needed any medical assistance.  The witness got the driver out of the vehicle, obtained her keys and drove the vehicle off to the side of the road.  It became apparent to the witness that the driver was impaired from alcohol.  A police officer arrived when the driver and the keys were already outside of the vehicle.  The police officer arrested the driver for DUI based on his observations that she was drunk and the witness’s statement that she had been driving.

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In Florida, most DUI (driving under the influence of alcohol or drugs) cases involve the police requesting the defendant take a breathalyzer test at the jail. This test is normally offered only after the police make the DUI arrest. Therefore, if the defendant has a low score on the breathalyzer, or even a 0.00 result, the defendant is still arrested for DUI. In many cases, the police will then request a urine or blood sample to test for other substances. The police do not admit error after making an arrest, and once the police effect the DUI arrest, there is no going back.

There are times when the police can draw blood and send the blood to the lab for testing of blood alcohol content. The police are not allowed to obtain a blood draw when a breath test is viable and reasonable, as in most DUI cases in Florida. However, the DUI suspect can request one, and there are other situations where the blood draw is permissible. This often comes up in DUI cases that involved serious accidents.

In Florida, when a person is involved in a serious accident and has a serious injury that requires a trip to the hospital, it may not be practical to obtain a breath sample from the DUI suspect. In those cases, the police may be allowed to obtain a blood sample at the hospital for testing. The police cannot do it in any situation where there is an accident and the suspect is taken to the hospital with serious injuries. The police need reasonable and sufficient evidence that the suspect was impaired while driving. However, it seems as if that standard is pretty low when serious accidents are involved.

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One sad fact about elections and political movements- they are expensive, and the costs seem to increase each year. As more and more states realize there is a medical benefit to marijuana and it is ridiculous to have it on the list of Schedule I drugs along with substances like heroin, more states are moving to legalize medical marijuana. Additionally, as more and more states realize what a complete waste of taxpayer money and government resources it is to have police arresting marijuana users and sellers and have prosecutors bring criminal cases against them, more states are seeking to legalize marijuana completely.

Marijuana legalization efforts are finding their ways on ballots all over the country. As a result, there are campaigns for and against marijuana legalization. Any such campaign needs to be well financed for success. Do you know one of the primary groups funding the effort to keep marijuana illegal and to keep taxpayer money going towards the arrest, prosecution and incarceration of marijuana users and sellers? Not surprisingly, it is the pharmaceutical industry. The reason is obvious. When people decide to treat their pain, anxiety, seizures, depression, PTSD and many other afflictions naturally with marijuana, they are not paying the exorbitant prices required to treat those same medical problems with synthetic drugs. And that results in less profit for pharmaceutical companies.

According to a new study published in HealthAffairs, in the seventeen states that have authorized medical marijuana as of 2013, fewer prescriptions for synthetic painkillers and other drugs were written. For instance, the average doctor in those states prescribed 265 fewer doses of anti-depressants, 486 fewer doses of seizure medication, 562 fewer doses of anti-anxiety medication and 1,826 fewer doses of painkillers each year. A more thorough summary of the results of the study can be found in this Washington Post article.

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In Florida, a person who gets sentenced to jail might be able to take advantage of a work release program for inmates if the jail offers such a program. For instance, in Jacksonville, the Duval County jail allows certain inmates to leave the facility to go to an approved job during normal work hours. The inmate must have the job and the company pre-approved by the people running the work release program. Once approved, the inmate is allowed to leave the jail in the morning, work all day and return to the jail in the evening after work. It is a great way for an inmate to keep his/her job while incarcerated and also to spend a good portion of his/her jail sentence outside of the jail.

There are risks to entering such a program. An inmate who does not follow the rules of the work release program can be charged with escape, which is a serious felony crime in Florida. Hopefully, if the inmate is late to work or late getting back to the jail every now and then due to traffic, the bus schedule or some other legitimate reason, there are no adverse consequences. However, if an inmate in the work release program commits a more serious and intentional violation, it could result in a more serious penalty.

When a person is in the work release program and at his/her job, that person is still considered an inmate under Florida law, and the time at work is still considered confinement. Any person who escapes confinement or does not stay within the limits of his/her confinement is guilty of escape in Florida.

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In Florida, the crime of burglary involves a person breaking into or entering a place with the intent to commit a theft or other crime inside. The crime of burglary in Florida can get a little complicated based on the type of place that is entered, where the defendant was and what happened once inside. However, what is clear is that a person does not have to break in to be guilty of burglary. Simply going into a place without permission to steal something or commit certain other crimes inside is normally sufficient for a burglary conviction.

However, under Florida law, it is not a burglary if a person enters a place to commit a crime that is open to the public. In a recent burglary case near Jacksonville, Florida, the defendant entered a 7 Eleven store during normal business hours and stole money after threatening the cashier with a gun. The prosecutor charged him with several crimes including burglary with a weapon (the penalties for burglary with a weapon are more severe in Florida than a burglary without a weapon). The defendant was convicted of this charge, but the criminal defense lawyer appealed.

The conviction for burglary was reversed. It is a defense to burglary in Florida if the place that was entered was open to the public. That was the case here. Since the defendant walked into the store just as any customer would be permitted to do and stayed in an area where customers were allowed to be, it was not a burglary. This looks like a case where the prosecutor overcharged the defendant and wasted state money and resources on an extraneous charge as the prosecutor clearly had other serious charges to file that also come with severe penalties.

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The federal government maintains a list of Schedule I drugs. According to the United States Drug Enforcement Agency, these are substances that they have determined have a high potential for abuse and have no accepted medical benefit. You do not have to look far down the list to see how much of a sham it is considering that heroin, bath salts and marijuana are on this same list. One of these is not like the others. We were hoping that the government would come to its senses and remove marijuana from the list, for several reasons, not the least of which is that it is prescribed for medicinal purposes all across the country now, by actual doctors who have learned about medicine in school and in practice. Unfortunately, as is often the case, we continue to wait for the government make a rational decision here that actually helps people.

So, marijuana remains on the list. And a new substance has been added. A substance called kratom is now a Schedule I drug according to the DEA. Kratom is a plant from Southeast Asia that people use to treat pain. Many people use it to avoid taking pain pills, which of course are perfectly fine to be sold en masse to people in the United States. The DEA has added kratom to the Schedule I drug list because of two substances found in the plant- mitragynine and 7-hydroxymitragynine. Kratom has similar effects to pain pills, which is why people use it instead of pain pills. Apparently, it is addictive, like pain pills, but unlike pain pills, it is not something that people overdose on, for the most part. The percentage of kratom related deaths compared to kratom use is extremely low, and significantly lower than overdoses and deaths relating to painkillers.

While decisions such as these create more laws and more government, they also serve to push people to more dangerous pharmaceutical products. For substances that are not particularly dangerous and/or are much less dangerous than prescription drugs used for similar purposes, these rules and laws and clearly counterproductive. However, given that these rules and laws increase government, increase the need for prisons and increase profits for pharmaceutical companies, you have to wonder what exactly the real purpose is.