April 19, 2014

Can an Unauthorized Driver of a Rental Car Challenge an Illegal Serch in Florida

In Florida, the police are generally not allowed to search a suspect's vehicle unless the driver or owner gives consent to search, the police have probable cause to believe there is evidence of criminal activity inside or there is an arrest of an occupant of the vehicle and there is a danger that evidence may be compromised. The police cannot stop a driver and then search the vehicle based on any assumptions or anonymous tips that there may be illegal drugs or other evidence in the vehicle.

When the police conduct an illegal search, the defendant's remedy is to have the criminal defense lawyer file a motion to suppress to have any evidence obtained as a result of the illegal search thrown out of court. However, the defendant must have what is called standing in order to have the criminal defense attorney properly file the motion. Standing is another word for the legal right to challenge the alleged illegal search. If the driver who was arrested also owned the vehicle, or had authorization from the owner to drive the vehicle, that defendant would likely have standing to challenge an illegal search. Likewise, if a person rented the vehicle, the renter would have standing to challenge an illegal search. But what about a person driving a rental car that was not listed as an authorized driver?

In a recent drug case near Jacksonville, Florida, a police officer stopped the defendant for traffic violations. The officer asked for consent to search the vehicle, but the driver refused. The officer noted the driver was driving a rental car and asked to see the rental car agreement. The police officer saw that the agreement mentioned only one authorized driver, and the person driving was not him. The police officer ultimately searched the vehicle and found marijuana and marijuana paraphernalia inside. The driver was arrested for possession of marijuana with intent to sell.

This appeared to be an illegal search so the criminal defense lawyer filed a motion to suppress the marijuana evidence. Even though the motion was valid as it challenged the questionable search, the court denied the motion because the driver did not have standing to challenge the illegal search. The rule in Florida is that an unauthorized driver of a rental car cannot challenge an illegal search in court. By unauthorized, the law means that the rental agency must have specifically authorized the driver on the rental agreement. If the person who was authorized to drive the rental car allowed another person to drive the car, that other driver is not considered an authorized driver if he/she is not listed on the rental agreement.

To put it another way, if you are driving a rental car and you are not listed as an authorized driver on the rental agreement, the police can basically pull you over and search the car without complying with any right to privacy protections in the constitution.

April 16, 2014

For Underaged Drivers in Florida, the Legal Limit for a DUI is Much Lower

In Florida, the law establishes what it considers a legal limit for a driver's blood alcohol content. Most people know that the legal limit in Florida in DUI cases is 0.08. If a person blows a 0.08 or higher on the breathalyzer, that does not necessarily mean he/she will be convicted of DUI, but it is certainly evidence that state can use to try and prove a DUI case in court. How many drinks it takes to get to 0.08 depends on various factors including body weight, metabolism, food intake and other factors.

Most people are also well aware that the drinking age in Florida is 21. The rules in Florida regarding DUI's are different for a driver under the age of 21. For one example, the legal limit is much lower. In Florida, it is illegal for a person under the age of 21 to drive with a blood alcohol content of 0.02 or higher. It does not take much alcohol to get to a 0.02 blood alcohol content.

Many adults go out to dinner and have a drink or two and drive home assuming they are under the 0.08 legal limit. They certainly may be right. However, for people under 21, that will not help. The legal limit is such that just about any alcohol may subject them to a DUI charge. The idea of course, is that since people under 21 are not legally allowed to drink, they are not given the same leeway when it comes to a DUI charge. For adults over the age of 21, drinking and driving is not illegal as long as the driver is not impaired. For people under 21 years of age, any drinking and driving can easily subject them to a DUI conviction. Since the penalties for DUI convictions get increasingly worse as a person gets more than one, and much more expensive, it is important to avoid DUI's, particularly for younger drivers.

April 13, 2014

Florida Police Can Order Blood Draw in DUI Manslaughter Case Where There is Evidence of Impairment

In a normal DUI case in Florida, where there is no accident with serious injury or death, the police do not request or seek to obtain a blood sample of the defendant to test for alcohol content. The procedure is often different when a DUI case does involve an accident with serious injury or death.

In a DUI manslaughter case near Jacksonville, Florida, the defendant failed to yield and caused a crash that killed the other driver. A police officer responded to the scene and observed that the defendant appeared to be impaired from alcohol. The police officer testified that he smelled an odor of alcohol coming from the defendant and she was belligerent with multiple police officers. As a result, he ordered the defendant to submit a blood sample that was later tested and found to have an alcohol concentration above the legal limit in Florida of 0.08.

The criminal defense lawyer filed a motion to suppress the blood alcohol test results claiming the police officer did not have a right to order a blood sample taken from her and tested without a search warrant. The Florida implied consent law means DUI cases are treated differently when a serious injury or death is involved. In that case, if the police officer has probable cause to believe the person who caused the accident was under the influence of alcohol or drugs, the police officer has a right to order a blood draw and test it for alcohol content. Implied consent means a driver consents to this process when he/she agrees to accept a driver's license in Florida.

The state also argued that exigent circumstances existed that allowed the police officer to obtain the blood sample without a warrant. One exception to the general rule that the police must get a search warrant to search a person, including getting a blood sample, is the exigent circumstances exception. This exception applies when the police do not have time to get a search warrant and there is a risk that evidence might be lost. In the case of a DUI manslaughter, the court discussed how the police officer responding to the crash scene has to take time to sort out what happened and then has to evaluate the driver to see if there is evidence of impairment. Once that is done, it still may take a couple of hours to obtain a search warrant. Since alcohol continually dissipates in the blood, the evidence of blood alcohol content may be gone by the time the suspect driver has his/her blood drawn. In such cases, it is possible that the police could use the exigent circumstances exception to more quickly obtain a suspected DUI driver's blood without applying for a search warrant.

April 10, 2014

Florida Stand Your Ground Claim Does Not Work Where Defendant Shot Victim in Back

In a recent shooting case near Jacksonville, Florida, the defendant was charged with aggravated battery with a firearm after shooting the victim in the back of the leg. The criminal defense lawyer filed a Stand Your Ground motion claiming that the defendant had a right to use deadly force against the victim because the victim was threatening him. Since the victim was unarmed and shot in the back of the leg, this was apparently a difficult argument.

Under the Florida Stand Your Ground law, a person can use deadly force, including firing a gun at another person, if that person reasonably believes it is necessary to respond to an another's use or threat of deadly force. Whether that claim is valid depends on the circumstances. When the alleged victim also has a gun and is shot facing the defendant, that is likely to be a stronger defense claim than when the alleged victim is unarmed and shot facing away from the defendant.

In this case, the defendant and the victim did not like each other and had several arguments prior to the shooting. Ultimately, the victim came to the defendant's house to confront him. Each side gave different stories as to what happened, but the evidence was clear that the victim was unarmed and shot in the back of the leg outside of the defendant's house. That evidence was consistent with the victim's testimony that he turned to leave once the defendant retrieved his gun. That evidence was not consistent with the defendant's story that he feared that the victim was going to beat him up when he fired the shot.

With Stand Your Ground immunity motions filed to have the case dismissed, the judge decides the validity of the motion. In this case, the judge did not find that the defendant was reasonably in fear of death or serious bodily injury when he shot the victim. Having lost the motion, the defendant was free to use the same factual arguments at the trial, but he was not entitled to have the case thrown out by the judge pursuant to the Florida Stand Your Ground law.

April 7, 2014

Florida Stand Your Ground Immunity Applies to Correctional Officers As Well

After a few well publicized cases in Florida, many people are aware of the Stand Your Ground law in Florida. It really is not any sort of groundbreaking law. It is a derivation of self defense, which has been around forever. It addresses the fact that a person does not have a duty to retreat in the face of a reasonable threat and also allows a criminal defense lawyer to file a motion to have the case thrown out before it ever gets to a jury if the judge finds the defendant had a right to use reasonable force under the circumstances. But generally, it is applied as a fairly standard self defense law- a person has a right to use reasonable force to defend against someone else's use of force or the reasonable threat of force.

In a recent Florida case not far from Jacksonville, Florida, the Florida Stand Your Ground law was asserted by a defendant who worked as a corrections officer. The defendant worked at a jail in Lake County, Florida. Apparently, he got into a fight with an inmate that resulted in multiple fractures to the inmate. He was subsequently charged with aggravated battery.

The criminal defense lawyer asserted a self defense/stand your ground claim. The court questioned whether correctional officers could use the Florida Stand Your Ground law because there are specific statutes already in place that deal with correctional facilities. Those laws have provisions that authorize the use of force by correctional officers against inmates. The higher court ruled that correctional officers can use the Florida Stand Your Ground law. The Florida statutes that deal with correctional officers do not nullify the Florida Stand Your Ground law and vice versa as the Stand Your Ground law apply to correctional officers. The higher court did not decide whether the defendant had a legitimate Stand Your Ground claim; they just ruled that a correctional officer has a right to pursue one.

April 4, 2014

Can Police in Florida Come Up to Your House and Knock if You Have a Closed Gate?

In Florida, the police generally need a search warrant to enter your home and search for illegal drugs or other evidence of criminal activity. When they do not have a search warrant, they can still try and gain legal access to your home by walking up to your door, knocking, asking some questions and requesting consent to enter and search your home. For the most part, police officers have the same right to approach your front door, knock and ask questions as anyone else does. If you decide to open your door, answer questions from the police, let them come in and then they find guns or drugs or other evidence, that was your choice.

However, there are limitations to this. If there is free access between your street and your front door, the police can typically just walk right up and knock. On the other hand, if you have a closed gate or barbed wire or some other obstruction preventing someone from walking up to your door, the police usually cannot cross that obstruction to get to your front door to knock. The police cannot likely open a closed gate or climb a fence to get to your door. They certainly cannot break or unlock anything to get to your door without a search warrant.

In a recent trafficking in marijuana case near Jacksonville, Florida, the defendant lived on a large piece of property that was surrounded by a barbed wire fence and also had a chain linked fence blocking the long driveway. He had "No Trespassing" signs on the fence. After receiving an anonymous tip of drug activity, the police went to the house to do what they call a "knock and talk" (go to the door, knock and hope the suspect starts talking). The police officers opened the gate and drove down the driveway and ultimately approached the front door. The defendant answered, spoke to the police and they ultimately discovered a large amount of marijuana on the property.

The criminal defense lawyer filed a motion to suppress the evidence of the marijuana. The criminal defendant attorney argued the police did not have a right to basically trespass onto the property to do a "knock and talk". Since the defendant's property was gated and indicated he did not want trespassers/strangers, the police did not have a right to come onto the property without a search warrant or consent.

The court agreed, and the marijuana evidence was thrown out. People have a right to a reasonable expectation of privacy in their homes and on their properties. When a property owner puts up a fence and makes it clear that he/she does not want unknown visitors, the law protects that privacy interest. If the police want to go onto that property, they need a search warrant or consent.

March 31, 2014

Jacksonville Police Seize and Try to Forfeit Large Sum of Cash From Traveler in Jacksonville Airport

Shorstein & Lasnetski, LLC recently represented a person who was traveling through Jacksonville on his way back from a nearby poker tournament. Having had some success at the poker tournament, he was bringing a large sum of cash back home with him. When he went through the security line at the airport, he was stopped and escorted to a room by the Jacksonville airport police where his luggage was searched. At this point, there was no indication that he had broken any laws. When the police searched his belongings, they did not find anything illegal. They did, however, find a large amount of cash in his luggage. The police officers questioned him as to where he had been, where he was going and how he obtained the cash.

Due to terrorism and the safety concerns inherent in air travel, a person traveling through an airport does not have the same privacy rights that one would have in his/her home or vehicle. However, that does not mean that the police can detain a person, search his/her property and interrogate him/her without any evidence of criminal activity. However, that is exactly what happened here. The police found no evidence of any criminal activity and knew nothing about this individual other than the fact that he was traveling with cash. He would have been within his rights to refuse to answer any of their questions and demand to leave, but he decided to explain to them that he just came from a poker tournament where he won the money. The police were not satisfied with this response and seized his money. They then allowed him to fly home since they had no legal basis to detain him. Of course, they had no legal basis to take his money, but they did that anyway.

When the police seize property from someone, the government then has to file paperwork indicating an intention to forfeit, or retain ownership of, the property. While the client hoped that someone with even a basic grasp of the Constitution and Florida forfeiture laws would review this case and realize the money was improperly seized so it could be quickly returned to him, the opposite occurred. The government agency that reviewed the case filed paperwork to have the money forfeited to the government.

After fighting the case and illustrating that there was no legal basis to have seized the money, the money was ultimately returned to our client. However, this is an example of how the government has tremendous authority to detain people, search their property, interrogate them and even take their property with little to no evidence of criminal activity. If this happens to you and you want to assert your rights to recover your property, it is important to speak with a law firm that is well versed in the Florida forfeiture laws and the methods the government uses to try and take property from citizens. Feel free to contact us for a free consultation about your rights.

March 24, 2014

Knock and Announce Search Warrant in Florida Requires Police to Allow Occupant Time to Open Door, But Not Much Time

In Florida, there is such a thing called a knock and announce search warrant. If the police have sufficient evidence to believe there are drugs or other evidence of criminal activity in a residence, the police can obtain a search warrant that allows them to search the premises. That does not necessarily give the police the right to barge into the home and start searching. It can be a serious safety risk both to the occupants and the police if they just barge into the home unannounced.

A knock and announce warrant requires the police to knock on the door, announce they are police and give the occupant the opportunity to let the police inside. However, if no one lets the police in, the police can then break open a door or window to gain entry.

One question that comes up is whether the police complied with the requirements of the knock and announce search warrant. Often, it is question of whether the police gave the occupants sufficient time to open the door before busting through the door. On the one hand, there is the safety issue with the police coming into one's home unannounced. On the other hand, if the police announce themselves and wait too long, the occupants could dispose of drugs or other evidence that are in the residence.

In a recent trafficking in marijuana case near Jacksonville, Florida, the police obtained a knock and announce warrant for the defendant's home. According to the police, they knocked, announced themselves and waited about ten seconds. When no one answered, they knocked and announced themselves again. At this point, no one answered, and the police rammed the door, went inside and found a large quantity of marijuana inside. The criminal defense lawyer filed a motion to suppress the evidence of the marijuana alleging that the police did not comply with the terms of the knock and announce search warrant by barging into the house too quickly. If police do not follow the terms of a search warrant, the criminal defense attorney can file a motion to suppress and potentially get all of the evidence found as a result of the search thrown out.

In this case, the police officers testified that they waited about twenty seconds in between the initial knock and busting through the door. The court found that this was a reasonable period of time to give the defendant an opportunity to answer the door.

The law does not establish a certain period of time that is acceptable for the police to wait before ramming the door. Each case is evaluated based on its own circumstances. It seems pretty clear that five seconds or less is probably not enough time. There are cases out there in which fifteen or more seconds have found to be enough time. But again, it really does depend on the specific circumstances like the time of day, the size of the residence, whether the police can see or hear any activity in the home and other factors. For instance, the police would need to give more time if they show up to a large house at 3:00 a.m. as opposed to a small house at 6:00 pm. Likewise, if the police knock and announce and then can hear people inside scrambling around, a judge may be more willing to allow the search than if the house is quiet.

March 17, 2014

State Can Charge Conspiracy to Traffic in Drugs Based on Phone Conversations in Florida

In Florida, trafficking in cocaine or another drug normally means a person is caught possessing a large quantity of drugs or distributing a large quantity of drugs. How much drugs needs to be possessed or distributed to qualify for a trafficking charge depends on the type of drug. For pills and heroin, it does not take much. For cocaine, it takes more but still not as much as people might think. For marijuana, one would need to have quite a lot. If a person does have a sufficient quantity of drugs to be arrested for trafficking, the charge usually comes with a severe mandatory minimum prison sentence.

Conspiracy to traffic in drugs is also a very serious criminal charge in Florida. For a trafficking charge, the state does not need to prove the defendant actually possessed or distributed the drugs. The state can move forward with a conspiracy charge if a person merely agreed to participate in the trafficking. A fairly common situation occurs when the police arrest a lower level drug dealer and then convince that person to cooperate with the police. That person may agree to wear a wire and also give up the phone numbers of other drug dealers so the police can get a wire on their phones. If the police are able to record a person discussing selling a certain quantity of drugs over the phone, that may be sufficient for a serious conspiracy to traffic charge. Conspiracy to traffic in drugs means that a person comes to an agreement with another to traffic in drugs. An actual drug deal does not have to take place. The defendant may not even touch any drugs. If he/she comes to some sort of understanding with another to distribute a sufficient quantity of drugs, it can be conspiracy to traffic drug charge.

March 13, 2014

Federal Government to Propose Lighter Sentences for Non-Violent Drug Offenders

It is not always clear when a criminal case will be handled by the federal government, i.e. the United States Attorney's Office, or the state or local government, i.e. the state attorney's office here in Florida. For drug cases, the federal government typically likes to handle the bigger cases, and the cases that involve small amounts of drugs normally stay on the state or local level. If drugs and guns are involved, the federal government often likes to handle those cases because the federal statutes and sentencing guidelines have harsh penalties for people convicted in those cases.

Whether a defendant is better off in state court or federal court depends on a lot of factors such as the nature of the case, the defendant's criminal history, the judge, the county and other factors. The federal system does have fairly severe potential penalties for all varieties of drug cases, but again, whether a defendant actually gets a severe penalty depends on many factors. However, in federal cases, hopefully help is on the way for those people charged with non-violent drug offenses. We have discussed at length how our prisons are full of non-violent drug offenders. This isn't just an enormous waste of taxpayer money, but it is also counterproductive if the idea is to help people get off of drugs.

Some government officials seem to finally acknowledge this problem and are doing something about it. Attorney General Eric Holder recently announced proposed reductions to the federal sentencing guidelines for non-violent drug offenders. The federal sentencing guidelines are guidelines that judges strongly consider when sentencing a defendant for any crime in federal court. These new guidelines would apparently reduce prison sentences by eleven months, on average. This, of course, would also reduce taxpayer expenditures going towards the housing of non-violent drug offenders. It is expected that these new, more lenient guidelines would go into effect later in 2014.

March 6, 2014

Entrapment Defense Does Not Work in Florida Traveling to Meet a Minor Case

In Florida, it is a serious felony crime to travel either within a state or across state lines to meet a minor, or a person believed to be a minor, to engage in unlawful sexual activity. These cases are often the Craigslist cases where an undercover officer will pretend to be a minor on Craigslist or a similar website who is interested in meeting an adult for sex. If a suspect engages that "minor" over the internet, the officer will suggest they meet for sexual activity. When the suspect shows up, he is met by numerous police officers and arrested. At least one of the charges will be traveling to meet a person believed to be a minor for the purpose of illegal sexual activity. This is a very serious felony charge in Florida that normally comes with a significant prison sentence.

These cases can be strong for the state. First, a defendant charged with such a crime is often stigmatized before he gets his day in court. Secondly, as long as the state can prove the defendant is the person with whom the undercover officer was communicating over the internet about the sexual encounter (the fact that the defendant shows up to the meeting at the time discussed online goes a long way towards doing that), it is hard for the defendant to provide a legitimate reason for the meeting. One common defense in these cases is entrapment. Entrapment is also used, but somewhat less common, in drug cases. In these cases, the defendant will say that he initially planned to meet an adult female and thought he was communicating with an adult, but the undercover officer entrapped him by later claiming to be a minor and insisting upon the meeting.

Entrapment is a very difficult defense to make in any criminal case. A police officer being sneaky is not sufficient for entrapment. The defendant must show that the police officer's fraudulent representation created a substantial risk that an otherwise law abiding citizen would commit an offense. A simple offer to engage in illegal activity is not nearly enough. If the undercover officer gave no indications to the suspect about a minor being involved, set up a meeting and then had a minor show up at the meeting, there would be a good defense to that scenario. However, these police officers are trained to communicate in these stings and at some point during the discussion, the officer will make it clear that he/she is a minor (or at least pretending to be), and if the defendant continues with the discussion and the meeting, the entrapment defense is probably not going to work.

March 3, 2014

Florida Man Arrested for Felony Child Neglect After Instructing Child to Call Mother Rather Than 911

In Florida, the crime of child neglect is committed when a person described under the law as a caregiver fails to provide care or supervision to a child that is necessary to maintain the child's health or to protect a child from abuse or neglect. Child neglect is a felony, and the seriousness of the charge is largely based on the extent of the injury to the child, if any. However, even if the child is not injured, child neglect is still a felony charge in Florida.

In a recent child neglect case near Jacksonville, Florida, the defendant was babysitting his girlfriend's children. Under these circumstances, the defendant is likely to be considered a caregiver under Florida law. While the mother was away, her youngest child apparently fell out of his crib and lay on the floor unresponsive. The defendant told the oldest child to call the mother rather than 911. The mother came home, and she called 911. The child went to the hospital with serious injuries. The police arrested the defendant for child abuse claiming that the defendant neglected the injured child by having the older child call her mother rather than 911.

One problem with a child neglect charge is the more injured the child is and the younger the child is, the angrier police, prosecutors and jurors get and the more they may want to hold someone accountable. This can result in police, prosecutors and/or jurors making decisions based on emotion rather than the facts and the law. The law says that negligence in this context must be a gross and flagrant failure to act reasonably with regard to others. The defendant must have an utter disregard for the safety of the child. Child neglect cannot merely be a mistake or a bad decision on the part of the defendant that either places a child at risk or seriously injures a child.

In this case, the child neglect charge was ultimately thrown out by the judge. while the defendant may not have made the best decision, the state cannot prove that he had a complete disregard for the safety of the child. Had the defendant just ignored the small child laying on the ground unresponsive, that likely would have been child neglect. However, telling the older child to call the mother first, and 911 eventually, is not a flagrant act that disregarded the child's health. Again, these cases are susceptible to rash and emotional decisions on the part of the state to arrest defendants and charge them with felonies. However, the law is clear that the state must prove a flagrant disregard for the child's safety, and proving that the child was seriously injured is not the same thing. If the state cannot prove the case based on the defendant's conduct, or lack of conduct, a child neglect charge should not proceed.