March 1, 2015

Florida Appellate Court Awards Attorneys Fees to Claimant After Money is Forfeited Without Evidence of Criminal Activity

As we have mentioned many times before on this website, we have seen many cases where a Florida law enforcement agency has taken money or other property from a person without any indication that the person or the property was involved in criminal activity. The Florida forfeiture laws allow the police to take property from people in a variety of circumstances, even when the police do not have sufficient evidence to make an arrest. In these situations, it is important for the property owner to contact a forfeiture attorney to assert his/her rights and take the proper steps to recover that property. We have represented people who have been the victims of outright theft of hundreds of thousands of dollars by the police under the forfeiture laws in Florida, and we often do it at no upfront cost to the claimant.

It looks like the Miami Dade Police Department is no different than many others in Florida that will take a person's cash without any regard to a lack of evidence and perhaps ask those questions later. In a recent case in South Florida, an individual was traveling to Miami from Colombia with about $120,000 in cash. When he went through customs, the police stopped him and asked him questions about the cash. He said he was coming to Miami to buy cell phones to resell at his store in Colombia. The police took his cash anyway and initiated forfeiture proceedings to keep the cash. In the forfeiture pleadings, the state alleged that the individual was using the cash to buy illegal drugs. However, the state offered no specific evidence to support that allegation, and no criminal arrest was ever made.

On the other hand, the claimant was able to present witnesses who would testify that the claimant was in the electronics business and had purchased cell phones in the past from legitimate electronics businesses in Miami for resale in his home country. The claimant also presented receipts for past purchases of cell phones for resale in Colombia. In any case, it was the state's burden to establish probable cause that the cash was the proceeds of illegal activity or used in connection with legal activity. The state failed completely in doing so.

After approximately eight months, as the forfeiture case was slowly moving through the system, the state still had not produced any evidence that the individual or the money was connected to illegal drugs in any way. Finally, a judge dismissed the case, and the individual received his money almost nine months later (minus what he had to pay his criminal defense/forfeiture lawyer after recovering the money).

After winning the case, the forfeiture lawyer filed a motion to recover attorney's fees from the state. The Florida forfeiture statute does allow the prevailing party to recover attorney's fees, but the standard is fairly high. It is not enough for the prevailing party to show he/she won the case. The prevailing party must also show that the state did not act in good faith in any stage of the forfeiture proceedings or that the seizing agency grossly abused its discretion when seizing the property. This is a high standard, and it can be difficult to get a local judge to make such a finding against a local district attorney's office and/or a law enforcement agency.

However, the award of attorney's fees in such blatant abuses of the forfeiture laws is critical as it is the only deterrent to prevent government agencies from stealing people's property under the Florida forfeiture laws. Otherwise, the state can seize property, file forfeiture pleadings in court, force the claimant to hire an attorney, if he/she can, and drag the case out through the normal litigation process in the hopes of getting a good result or a settlement. That process can be demanding, expensive and time consuming for innocent owners of seized property. If the worst thing for the state would be the return of property at the end of the process, that provides no disincentive to steal property from people under the forfeiture laws. If anything, it encourages the state to take property without evidence of criminal activity and abuse the system as some people may not be able to afford a forfeiture lawyer or may be forced to settle before the process ends due to financial pressures. The prospect of the state having to pay large attorney's fees for the claimants in the many abusive cases that occur in Florida is at least some deterrent against forfeiture abuse. It is important that judges award those fees where appropriate as the forfeiture statute allows.

February 26, 2015

Florida Police Officer Was Justified in Stopping Vehicle Where Window Tint Was Too Dark to See Driver

In Florida, a police officer can stop a vehicle if the vehicle's window tinting is too dark. The Florida statute provides that the side windows on a vehicle must have a light transmittance of at least 28% in the visible light range. This can be measured by certain devices after the initial stop is made. Of course, the initial issue is whether a police officer is permitted to stop a vehicle based on his/her opinion that the window tinting is too dark and illegal. A person cannot usually make that determination for certain based on looking at it from another vehicle.

A police officer is allowed to stop a vehicle if he/she has probable cause to believe a crime is being committed or a traffic law is being violated. In a recent case near Jacksonville, Florida, a police officer stopped a vehicle during the day because he could not see the driver through the side window due to the window tinting. He stopped the driver and found marijuana and cocaine inside. The driver was arrested for possession of marijuana and cocaine. The criminal defense lawyer filed a motion to suppress claiming that the police officer did not have a legal basis to make the initial traffic stop. The police officer testified that he pulls drivers over if the window tinting is too dark for him to see the driver. The court allowed this. Since the police officer has no way of determining for certain if window tinting is too dark as the vehicles are driving, if the police officer can establish in good faith that he had probable cause to believe it was too dark, it was a valid stop. The court found that the testimony that the police officer could not see the driver in the daylight was sufficient to establish a good faith basis that the window tinting was not legal.

February 20, 2015

Can the State Use a Defendant's Pre-Arrest Silence Against Him/Her at Trial in Florida?

Most people are aware that the United States Constitution affords people the right to remain silent. This means that a person does not have to give any statement to police that might be incriminating, and a defendant cannot be compelled to testify at his/her own trial. If a person chooses not to speak with police and/or chooses not to testify at trial, the state cannot use that choice against the person. For instance, a prosecutor could never tell the jury to infer that the defendant is guilty because he/she did not testify and defend him/herself at trial.

When a person is arrested in Florida, he/she should be read Miranda warnings. The Miranda warnings inform a person of certain rights, including the right to remain silent and the warning that if the suspect does make a statement, it can be used against him/her in court. That is fairly well known at this point. If a person is arrested and decides not to make a statement, he/she is exercising his/her constitutional rights, and the state cannot mention that silence at the defendant's trial to try and use it against him.

However, there are times when a police officer is investigating a crime and is not sure whether a person is a suspect. In those early stages, before any arrest, if the police officer asks a person questions and the person remains silent, can that silence be used against him/her at trial? Technically, before an arrest or a detention where the person is not free to leave, Miranda warnings and the constitutional right to remain silent are not implicated. What if a police officer arrives at a crime scene, has no idea who the suspect might be, asks a person some questions, that person remains silent and then is later developed as a suspect? Can the state use that silence against him/her?

This came up in a murder case near Jacksonville, Florida. The police came to the scene of what appeared to be a suicide and asked questions of the victim's wife. The wife stayed silent. The police officer did not give the wife Miranda warnings because he did not have any indication the wife was a suspect at that point. Later, the wife was arrested and charged with murder. At the trial, the defendant did not testify, but the state brought out the fact that she failed to answer the police officer's initial questions at the crime scene. The prosecutor argued that her silence was evidence of her guilt in his closing arguments. The wife was convicted of murder.

The criminal defense lawyer appealed the conviction arguing that the state violated her constitutional rights by commenting on her silence when the police came to the scene. The appellate court agreed and reversed the conviction. The current law in Florida says the state cannot comment on a person's silence in response to police questions either before arrest and Miranda warnings or after. The state can use that silence to impeach a defendant at trial. For instance, if the wife testified at the trial and said she told the police officer this or that, the state could bring the police officer in to testify that she was silent, contrary to her trial testimony. However, if the defendant does not testify at the trial or does not say anything at the trial that is contrary to her pre-arrest silence, the state cannot use her pre-arrest silence against her and cannot tell the jury it is evidence of guilt.

February 8, 2015

State Failed to Prove a Violation of Probation with Hearsay Evidence From Probation Officer

When a defendant in Florida is arrested and charged with a crime and then decides to enter a guilty or no contest plea, or has a trial and is found guilty, he/she will be sentenced by the judge. The judge will likely have a few options when sentencing the defendant. The judge can sentence the defendant to incarceration, probation, both or neither (time served). If the defendant is sentenced to a term of probation, there will be certain conditions that the defendant must follow. If the defendant fails to comply with one or more of the conditions of his/her probation, the judge may issue an arrest warrant for a violation of probation. If it is determined that the probationer violated his/her probation, the judge will likely sentence him/her again to incarceration and/or more time on probation.

There are a few conditions that are fairly standard for anyone on probation. For instance, a person on probation will likely be required to avoid possessing or using any drugs, except those prescribed by a doctor. If the original charge was a drug related charge, the probationer might have to have to take random drug tests. If the probationer is found with an illegal drug like cocaine or marijuana in his/her system, a violation of probation warrant is likely. If the probationer is found with a drug like Hydrocodone or Xanax in his/her system, the probationer should be safe as long as he/she can show that he/she has a valid prescription for the drug. Normally, the probationer will inform the probation officer of all of his/her prescription drugs at the beginning of the probation. However, if the probationer cannot produce a valid prescription, it will likely be treated as if the probationer is using any other illegal drug.

In a recent case near Jacksonville, Florida, a defendant received a probationary sentence and was required to avoid possessing or using any drugs, except a prescription drug with the appropriate prescription from a doctor. After a random drug test, the probationer's sample tested positive for opiates and Oxycodone, according to his probation officer. A warrant for a violation of probation was issued. At the probation violation hearing, the state's only witness was the probation officer. He testified that he performed an informal field test on the probationer's urine sample that resulted in the positive results. The sample was then sent off to a drug testing lab for more formal testing. At the hearing, the probation officer brought the more thorough lab test result document that also indicated the probationer provided a urine sample positive for opiates. Finally, he testified that he received an anonymous call indicated he should drug test the probationer because he was using drugs he bought off the street.

None of this evidence was sufficient to establish a probation violation. It was all hearsay evidence and evidence from someone who was not competent to interpret lab and drug tests results. In order to properly establish that that the probationer provided a urine sample that was positive for illegal drugs, the state needed to present a witness who was qualified to perform drug tests and interpret the results to properly show the probationer had drugs in his system. For instance, the state should have had an expert from the drug testing lab to testify at the hearing. Since the probation officer was not qualified to provide the expert drug test testimony, the court found that the state did not meet its burden to prove a probation violation.

February 5, 2015

President Obama's Proposed Budget Allocates More Money to the War on Drugs

While there seems to be some growing recognition that the war on drugs is criminally wasteful and counterproductive, with more states legalizing marijuana either for recreational purposes and/or medicinal purposes, clearly we still have a long way to go before we approach a reasonable and fiscally responsible state of affairs. The federal government has taken some limited steps to reign in the massive war on drugs. For example, the federal sentencing guidelines did partially rectify the extreme disparity between prison guideline sentences for crack cocaine cases versus powder cocaine cases. The federal government also does not appear to be interfering when states legalize marijuana, at least not as often as it did before.

However, much of the rhetoric from the federal government about the ineffective war on drugs and tremendous amount of money wasted on it is just that- rhetoric. President Obama recently released his proposed budget for fiscal year 2016, according to a recent article. Unfortunately, more and more money is being allocated to the war on drugs and the federal prison system. The budget proposes $3.7 billion for the Bureau of Prisons (an increase of $187 million), $2.46 billion for the Drug Enforcement Agency (an increase of $90 million) and $293 million for the Office of Justice Programs (an increase of $50 million). That last allocation is a significant 20% increase that goes towards drug tasks forces that are specifically designed to perpetuate the war on drugs and feed the bloated and expensive prison system.

Of course, as the article notes, this is just a proposed budget. Congress can make all sorts of changes to it. These war on drug expenditures can get better or, more likely, worse. In any case, it is hard to take the federal government seriously when it negatively mentions the war on drugs and then proposes hundreds of millions of dollars in increases to make more drug cases. In this case, as usual, money talks.

January 30, 2015

Senators Propose New Law to Curb Forfeiture Abuse

Over the years, handling asset forfeiture cases in Florida and Georgia, we have seen some eye-opening practices of police and other law enforcement agencies designed to take property from people for their own benefit. It is not uncommon for law enforcement agencies to take large amounts of money or other property from people when there is virtually no evidence a crime was committed and no hint of criminal charges. The forfeiture laws allow law enforcement agencies to do this, and they do so with the idea that they can either work out a settlement down the road or, in the case of smaller amounts of cash, the claimant will not bother to pursue the property or will not know how to pursue it. We have even seen cases where the police seize bank accounts without having a basis to arrest anyone but threaten arrests later for leverage during settlement negotiations.

Why do law enforcement agencies squeeze citizens this way and take their property with little to no regard for the laws and Constitution? Profit. Few things excite a police officer more than the prospect of forfeiting a nice car that is paid off that can be used as an undercover vehicle or some other purpose by that law enforcement agency. As long as these law enforcement agencies can directly profit from taking property away from people, they are going to do it. A lot.

Therefore, the obvious remedy to curb these abuses is to attack the motive, the profit motive. If it is so obvious, why hasn't this happened yet? Well, it is difficult to get the government to limit itself, particularly when the thing they desire most ($$$) is at stake. In the past, federal law enforcement agencies were not allowed to directly profit from their seizures and forfeitures. That changed in the 1980's, and as expected, the number of forfeitures increased significantly.

Two senators (Rand Paul and Tim Walberg) have proposed a law designed to limit the exorbitant number and value of forfeitures that are occurring today. The law would address the profit motive federal agencies have to seize and forfeit property. Under the proposed law, if a federal law enforcement agency forfeited someone's property, the property would go into a general federal treasury fund that would not directly benefit that particular law enforcement agency. Since law enforcement agencies would not get to drive that nice car that is paid off or see that cash go directly into its account, they would be less likely to overreach and take people's property for forfeiture without regard to whether a qualifying crime had been committed related to that property.

The proposed law would also provide free, appointed lawyers for people whose property was taken for forfeiture. Since forfeiture law is considered civil law, a person claiming property that has been seized does not have a right to an appointed lawyer. He/she would have to hire a lawyer for assistance. Providing a free, appointed lawyer for forfeiture cases would go a long way towards limiting forfeitures and helping citizens retrieve their money and property from the government. For instance, it is common for a police officer to pull over a vehicle, allege that there is an odor of drugs coming from the vehicle and seize any cash that they find in the vehicle. They will do this even if there are no actual drugs found in the vehicle, and no arrest can be made. If the amount of the cash is in the $5,000 range, the owner of the cash may not be able to hire a lawyer or it might not make sense to pay a lawyer a few thousand dollars in the hopes that he/she might get some or all of the cash back. In other words, police know that if they take a relatively small amount of cash, there is a good chance the owner cannot hire a lawyer or will not take the financial risk to hire a lawyer to assert his/her rights to that money. If owners are provided a free lawyer, as defendants are in criminal cases, many more of these questionable forfeitures of property would be challenged, which would be a disincentive for police to seize the property in the first place.

Keep in mind this is just a new proposal and is a long way from being passed. We are naturally skeptical that the government would pass a law that limits the government in an area where they can do their favorite thing- take money from people with little to no effort. Additionally, this would only apply to federal forfeiture cases. However, it is important for this issue to get attention, and if this proposed law does pass in some form, it is a step in the right direction.

January 22, 2015

Attorney General Eric Holder Issues a New Order Addressing Asset Forfeitures, But it Doesn't Do What Many Seem to Think it Does.

As criminal defense and asset forfeiture attorneys in the Jacksonville, Florida area, we have seen the many different ways the government will take and forfeit someone's property under the state or federal asset forfeiture laws. These cases have ranged from questionable searches seemingly designed to seize and forfeit certain property to cases where property is taken but no criminal arrests are ever made to outright thefts by the government of a person's property. Unfortunately, the government's taking of property is an area that has not received the attention that it deserves. When the police go and take a person's cash because he/she is carrying a large quantity of it without even contemplating an arrest and with no indication that the person committed any crime, that should get some scrutiny. But, it rarely does.

Attorney General Eric Holder recently made an announcement about a rule change regarding certain asset forfeitures. The new rule prohibits federal agencies from adopting state asset forfeiture cases, except for those cases involving public safety, i.e. guns, explosives, child pornography. After the new rule was published, we saw a lot of articles on the Internet indicating this is the end of asset forfeitures, in some form of another. It isn't. Not even close.

First, let's talk about what this new rule does not address. Before we do that, it is important to understand two terms. Seizure - when the police seize one's property, the police are taking possession of that property. Forfeiture - when the police forfeit one's property, they are assuming ownership of that property. If the government successfully forfeits property, that property now belongs to them. Asset seizures and forfeitures are conducted by police and other law enforcement agencies at the local, state and federal levels. State asset forfeitures laws apply to the state and local law enforcement agencies; federal asset forfeiture laws apply to the federal agencies.

The new rule articulated by Mr. Holder does not appear to limit federal asset forfeitures in any way. The federal government is still free to seize and forfeit assets in the same manner they did in the past, which is a lot and often. Additionally, this does not prohibit any local or state agency from seizing and forfeiting assets. This does not, in any way, affect those states that do not have rules that limit how state and local agencies can use the money and other property that they seize and forfeit.

So, what does this new rule do then? Well, we have to go back and understand why Mr. Holder enacted this new rule. One obvious problem with asset forfeitures is that it gives law enforcement agencies a profit incentive to take people's property. If the state agencies can use that property for their own benefit, they obviously have an incentive to take more and more of it. This is why we see cases where police seize property without even arresting anyone for a crime. If there are two things government agencies and officials love more than all else, they are government and other people's money. It is no secret that if a vehicle has an ounce of marijuana in it, the police are more likely to try and seize the vehicle for forfeiture if it is a nice vehicle, it is paid off, and someone in that agency can become the primary driver of that vehicle after forfeiture.

Due to the presence of this obvious profit motive, more and more egregious seizures of property were taking place. Some states decided to try and curtail these unlawful police seizures of property by addressing the conflict of interest, i.e. the profit motive. Some states passed laws saying that most of the money and other property seized and forfeited by state and local law enforcement agencies could not go to the direct benefit of those law enforcement agencies. Instead, the forfeited property would go to the benefit of a general state fund or an education fund. For example, some states have passed laws limiting the seizing agency's asset forfeiture profit share to 20% of the money or value of the property seized. If a county police officer seized $10,000 from someone allegedly involved with illegal drugs, the county police department could only keep $2,000 of that forfeited money for themselves. The other $8,000 would go into a general state fund that did not directly benefit that county police department. Since the police were not seeing the direct and immediate benefit of these forfeitures, they would be less likely to overreach and take people's property.

Unfortunately, as we have come to understand, some law enforcement agencies work under the theory that laws are for other people to follow. To circumvent the state laws limiting how much state and local law enforcement agencies can profit from their asset forfeitures, these law enforcement agencies worked out deals with federal agencies. Since the state laws regarding asset forfeitures do not apply to federal agencies, the state and local law enforcement agencies would seize property just as before, but rather than have a state agency pursue the forfeiture case, the seizing state agency would hand the case over to a federal agency to pursue the forfeiture. The seizing state agency would pass the forfeiture case over to the federal agency with an agreement that the state agency would receive a higher percentage of the profits from the forfeiture than the new limiting state law would allow. In the example above, the county police department was limited to gaining $2,000 if the forfeiture case was pursued on the state level. Alternatively, that county police department could give the forfeiture case to a federal agency, unaffected by state asset forfeiture laws, with an agreement that the county police department receive 80% of the forfeited money. This was clearly done to circumvent the new state forfeiture laws and allow state and local law enforcement agencies to profit from asset forfeitures as in the past and more than the new state laws allowed.

Mr. Holder's new rule prevents federal agencies from taking, or adopting, these forfeiture cases from state and local agencies in order to circumvent state laws limiting how much state and local law enforcement agencies can profit from these asset forfeitures. It is unfortunate that the federal government has to enact a rule preventing the federal government and state and local government agencies from disregarding rules designed to limit how they take property from the people who they are supposed to serve. However, because these government agencies need to be monitored and governed this way, it is a good and necessary rule. On a more global level, it is also encouraging to see the federal government begin to address a clear problem that goes largely unnoticed.

That being said, it is still important to understand this is not some sweeping paradigm shift that will drastically, or even noticeably, change the number of asset forfeiture cases nor the often questionable methods government agencies use when interacting with people in an effort to take and assuming ownership of their property..

January 13, 2015

Court May Decide Classifying Marijuana as a Schedule I Drug is Unconstitutional

One of the myriad problems and idiotic characteristics of the monumentally wasteful and unsuccessful War on Drugs is that the marijuana plant, or cannabis, is classified as a Schedule I drug by the federal government. Schedule I drugs are the most highly restricted drugs and reserved for drugs that are considered the most dangerous. Also, ironically, they are drugs that are considered to have "no currently accepted medical use", despite medical evidence to the contrary. As a result, under this rule, marijuana cannot be prescribed by a physician, despite the fact that medical marijuana is legal in one form or another in many states. Another characteristic of proper Schedule I drugs is that it must be a substance that has a high potential for abuse. As an example, heroin has a high potential for abuse. To classify marijuana and heroin together in such a category is ridiculous and unsubstantiated by any honest measure.

One result, of course, is that we have numerous criminal laws dealing with marijuana, and marijuana arrests are some of the easiest arrests for law enforcement to make to maintain their stats and keep prisons full. However, in a marijuana cultivation case pending in California, the defendants are challenging the classification of marijuana as a Schedule I drug. On its face, to have marijuana as a Schedule I drug with heroin while cocaine, methamphetamine and Oxycontin sit in the Schedule II category with drugs that apparently have "less abuse potential than Schedule I drugs", is completely ridiculous and irrational. Hopefully, a court will see this.

If the court does acknowledge this travesty of common sense, it is unclear what effect it will have on others. While it will likely help the particular defendants in this case, it may or may not reverberate to other locations and other decisions. Hopefully, it, or something, will prompt the federal government and prosecutors and judges to see that marijuana related prosecutions are a waste of time, money and resources as well as being counter productive.

January 9, 2015

In Florida, State May Be Able To Prove a Burglary Charge If Defendant Has The Property Shortly After The Theft

In Florida, prosecutors often charge someone with burglary even when there is no direct evidence that the defendant was at the house, business or other location that was burglarized. Generally, a burglary involves a person entering some structure with the intent to commit a theft or other crime once inside. Where a suspect gets caught breaking into a house or leaving a house with stolen property, a burglary charge is easier to prove. However, many burglary cases in Florida are brought even when there is no direct evidence establishing the defendant was at the location that was burglarized. There is a jury instruction in Florida that says a jury can consider the fact that the defendant was in possession of stolen property shortly after the burglary to find a defendant guilty of burglary. This is the case if it is clear the property was in fact stolen and the issue is whether the defendant was the one who stole it. This instruction does not come into play when the defendant admits he/she took the property, but, perhaps, defends the case by saying he/she had a right to take it.

For example, in many cases, there will be a burglary of a house, car or other structure that can be pinpointed to a certain time, i.e. a victim hears that his car is bring broken into and immediately calls the police at 5:00 p.m. The victim says his laptop computer was stolen from his vehicle. The police will likely check local pawn shops. If the police uncover evidence showing the pawn shop that is 10 minutes away from the victim's car has a pawn ticket and fingerprint from the defendant indicating he pawned the laptop computer at 5:15 p.m., that defendant will likely be charged with burglary, among other charges. While there may be no direct evidence, i.e. an eyewitness, that the defendant broke into the car and physically took the laptop, the state can get an instruction to the jury telling them they can consider the fact that the defendant had the stolen property shortly after the theft when considering a burglary charge. The defendant can always refute this instruction by claiming he had a reason why he had that stolen property unrelated to the burglary. This usually takes the form of a defendant claiming a friend gave it to him to sell or he bought it from a stranger and resold it. However, the closer the defendant's possession of the stolen property is in time to the burglary, the less credible that kind of defense will be.

December 11, 2014

Florida Drug Case Thrown Out Where Police Stop Suspect for Driving Too Slowly on Highway

In Florida, a lot of drug arrests stem from simple traffic stops. One way for a criminal defense attorney to attack such a case would be to challenge the legality of the initial stop. While this may be difficult when a police officer is prepared to testify that the suspect violated some traffic law, sometimes police officers make mistakes when they pull people over.

In a recent case near Jacksonville, Florida, a police officer stopped a suspect driving on the highway for apparently driving too slowly. The speed limit on the highway was 65 miles per hour, and the suspect was driving 45 miles per hour. The minimum speed was 40 miles per hour. After the police officer stopped the suspect. The police officer discovered that the suspect had a suspended license and arrested the suspect. The police officer also found a gun and cocaine in the car. The suspect ended up with felony and misdemeanor charges as a result of the traffic stop.

The criminal defense lawyer filed a motion to suppress all of the evidence leading to all of the charges because the initial stop was not valid. The suspect was not breaking any traffic laws so that would not be a legitimate basis to stop him. However, a traffic violation is not the sole legal basis for a police traffic stop. A police officer could arguably stop a driver if there was a reasonable belief that the driver was having some sort of medical problem. Police are allowed to stop a person and investigate if there is specific evidence of some kind of serious health issue. Alternatively, if the suspect was causing some type of traffic problem, that could be a legal reason to conduct a traffic stop.

In this case, the police officer testified that the suspect was impeding traffic so he stopped him. The court determined this was not a valid reason for a stop. Since it was permissible to drive 45 miles per hour on the highway, while it might slow other drivers down, it was not so problematic as to allow a police officer to stop the vehicle. Since the slow driving was legal behavior, a police officer would need more to conduct a traffic stop.

Since the initial stop was invalid, all of the evidence the police officer discovered after the stop was thrown out, and the charges were dismissed.

December 8, 2014

It is a Felony to Bring Drugs or Contraband into a Florida Jail but State Must Prove Knowledge

In Florida, it is a felony for a person to bring contraband into the jail. Many of these cases involve a person who is arrested with drugs on them and do not want to tell the police officer the drugs are there. The police officer does not find the drugs during a search incident to an arrest, but the personnel at the jail finds the drugs during a more thorough search. In that case, in addition to whatever charge the suspect was facing that prompted the initial arrest, the suspect will also face the felony charge of introducing contraband into a county facility.

However, in order to succeed on such a charge, the state must prove that the defendant knowingly introduced the contraband into the jail. Basically, the state has to prove the defendant knew he/she had the contraband on him when he/she entered the jail. Practically, the assumption will be that the defendant knew he/she had the contraband on him/her and it is up to the defense to establish that it was a mistake or he/she did not know. There are cases where the state may not be able to prove knowledge. If the defendant can show he/she was wearing old clothes or someone else's clothes or had a bag that had been in someone else's possession prior to getting booked in the jail or anything else to indicate he/she may not be aware of a small amount of drugs or other contraband in his/her clothes or personal items, the state may not be able to prove its case.

Keep in mind that this felony charge applies to more than drugs. Contraband under this criminal statute can also include unauthorized communications, money, tobacco products, alcohol and of course, weapons. It is also a felony to possess such contraband in the jail. If someone is able to bring contraband into the jail and does not get caught, a person who ultimately possesses the contraband can be charged with the felony crime.

December 5, 2014

What Does a Grand Jury Do, and How Does It Do It?

There has been a lot of publicity about grand juries due to the recent decisions involving police officers and homicides where the grand juries have decided not to move forward with indictments. Along with the publicity, there has been a lot of confusion about what grand juries do, how they do it and what they are actually deciding.

Grand juries are very different from the regular juries that participate in criminal trials. First, the few similarities. The people who make up grand juries and criminal juries generally come from the same pool in the community. They are both sworn to do their jobs, and they both listen to evidence. After that, there are significant differences. In a criminal trial, the jury gets to hear both sides, and each witness can be cross-examined by the other side's attorney. As a result, if a witness is not credible or changes his/her story, the other side's attorney will have an opportunity to question the witness, attack him/her with prior inconsistent statements and ask questions and present evidence that calls that witness's testimony into question. That is a key component to criminal trials. Both sides get to question the other side's witnesses to attack any areas the attorney believes is questionable, or an outright lie.

That does not really happen in grand juries. Both sides are not present in grand juries. Only the prosecutor is present to ask questions of witnesses in a grand jury proceedings, and he/she can be hard or easy on a witness depending on how that prosecutor wants the proceedings to go. The grand jurors can ask questions of witnesses, but they rarely do. Even if they want to, they are not likely to be experienced in cross-examination and do not have a full grasp of the evidence and the case to do a proper job of questioning a witness's credibility.

So, one critical distinction is that a grand jury witness can testify without the risk of the other side going after him/her to question the testimony. Many people have heard the statement, the prosecutor can indict a ham sandwich. Basically what this means is the prosecutor controls the grand jury proceeding. He/she can present whatever evidence he/she chooses, and more importantly, he/she can present that evidence in whatever biased manner he/she chooses. So, a prosecutor can present evidence in such a way that it looks very damning against a ham sandwich and without the benefit of the other side's attorney questioning that evidence, a grand jury is likely going to with the prevailing sentiment and decide to indict that ham sandwich. That is why the grand jury decides to indict approximately 99% of the cases they hear, according to statistics compiled by Nate Silver's FiveThirtyEight website. Of course, that 99% number only applies to regular people. When police officers are the subject of grand juries, that number goes down closer to 0%.

So, the inverse of the saying that a prosecutor can indict a ham sandwich is also true. A prosecutor can also fail to indict a criminal on any charges. It all depends on what evidence is presented, and perhaps more importantly, how the evidence is presented. As anyone who took any marketing class knows, context, delivery and presentation are critical components of persuasion.

Another key distinction is what the respective juries are there to do. Juries in criminal cases are empaneled to listen to all of the evidence from both sides and determine if the prosecution has proven that the defendant was guilty of the crime(s) charged beyond any reasonable doubt. This is a high standard. A grand jury is not there to decide if the defendant is guilty or innocent of a crime. The grand jury merely decides if there is sufficient evidence to charge the defendant so both sides can investigate further, prepare their cases and have their day in court. Practically, it is a preliminary decision that says the grand jurors think there is something to this and it should go through the normal criminal justice system process. And of course, how they are told that this is their job can certainly impact how they do that job and their ultimate decision. Make no mistake, if there is any evidence that a suspect committed a murder and you or I were that suspect, we would be indicted without delay, as that 99% figure suggests. That is true because grand jurors do not like to end murder cases or other serious criminal cases before they even go to court, and for regular people, the prosecutor is going to present that case to the grand jury in a way that encourages them to indict the case.

One final point about grand juries and high profile cases. Grand juries can be used as political tools for elected prosecutors who do not want to be held accountable for the difficult decision themselves. Different states have different rules about what cases must go to the grand jury in order for charges to be filed, but most cases do not need to be presented to a grand jury for criminal charges to be brought.

However, consider a situation where a case is getting a lot of publicity but to charge the defendant would be problematic for a prosecutor whether for political/election reasons or otherwise. The prosecutor does not want to make the decision to charge the suspect because it might upset certain large voting blocs. On the other hand, the prosecutor also knows it would look bad for him/her to just drop the charges on his/her own. The grand jury is perfect for this scenario. The prosecutor can convene a grand jury which meets secretly in a private room where the prosecution can present whatever evidence they want in whatever manner they want. The prosecution can steer the grand jury in the direction it chooses. When the grand jury decides not to indict the suspect, the prosecutor can get up in front of the media and disclaim any responsibility for the decision and defer to the grand jury. Since the other side had no representatives in the grand jury, the other side could neither attack the witnesses presented nor give their side to try and get an indictment. For that reason, the grand jury is the perfect responsibility-shifting method to get the desired result without taking any of the blame when election time comes back around.