November 12, 2014

Shorstein, Lasnetski, & Gihon named one of U.S. News and World Report's Best Law Firms

Shorstein, Lasnetski & Gihon (formerly Shorstein & Lasnetski) was recently named as one of U.S. News and World Report's Best Law Firms in the area of Criminal Defense - White Collar, Metro division, Tier 1. Click here to see the listing. You can see the methodology used by U.S. News and World Report here.

November 10, 2014

Florida Search Warrant With Multiple Errors Upheld by the Court

In a recent drugs and marijuana case near Jacksonville, Florida, the police received a tip of illegal drug activity at a particular apartment. They conducted surveillance on the apartment and observed what they considered to be suspicious activity. They ultimately obtained a search warrant to search the apartment for drugs. The conducted the search and found marijuana and guns inside.

The criminal defense lawyer challenged the search because the search warrant had several errors in it. A search warrant must describe the place to be searched with specificity. In this case, the search warrant had the wrong street number, the wrong street name and the wrong directions to the apartment. The police presumably were still able to locate and search the correct apartment because the police were familiar with it from previous surveillance.

The purpose of requiring a proper and specific description of the place to be searched in a search warrant is to make sure the police do not have a general license to go searching a wide range of places with one warrant. A specific location is included in the warrant so it is clear that the police are only permitted to search that one specific place. Additionally, the description is important so the police actually search the correct place. If the description or other parts of the search warrant are inaccurate, the search warrant may get thrown out. If that happens, the evidence the police found as a result of the search may not be used against the defendant in court.

In this case, the appellate court decided that the search warrant was good enough. Despite the obvious errors, the court determined that the risk of searching the wrong place or searching beyond the scope of the search warrant was limited because the police were familiar with the right location through prior surveillance and experience with this apartment. The court also noted that the police did, in fact, search the correct apartment. However, if the police get a pass with a faulty warrant just based on a "no harm, no foul" type of analysis, it denigrates the important requirement that search warrants are specific and accurate.

November 7, 2014

Florida Child Molestation Conviction Reversed Due to Potential Juror Intimidation

In a recent lewd and lascivious child molestation case in Jacksonville, Florida some unorthodox activity in the courtroom caused the appellate court to reverse the jury's guilty verdict on those child molestation charges. Apparently, a biker gang wearing "Bikers Against Child Abuse" jackets congregated outside the courtroom in the presence of the jury before and during the trial and also attended the trial, although without the jackets. After the defendant was convicted of child molestation, the criminal defense lawyer appealed the verdict alleging that the presence of the bikers with the obvious anti-defendant message was designed to intimidate, and had the effect of intimidating, the jury into finding the defendant guilty. The appellate court agreed this conduct deprived the defendant of a fair trial, reversed the conviction and gave him a new trial.

One of the protections afforded to defendants by the Constitution is the right to a fair trial. This means that, in order to convict a defendant of criminal charges, the state has to prove its case beyond a reasonable doubt. The state must meet that burden by presenting evidence that proves the defendant committed the crime. The state cannot rely on any extraneous factors to help it win the case. For instance, any outside influences that might sway the jury are not permitted in court or anywhere that might have an affect on the jury. This includes people in or near the courtroom that might intimidate the jury or influence them with messages of any kind. A trial is like a closed laboratory. The jury can only rely upon those things the law allows a jury to rely upon to make its decision. Those things are the witnesses testifying under oath, any exhibits admitted into evidence, the law provided by the judge and the arguments of the attorneys. The jury cannot go home at night and investigate on the internet or in any other manner. The jury cannot resort to any outside influences at all. And no outside influences can do or say anything during the trial that might affect the jury's decision. If there is an outside influence that is likely to affect the jury, either side can ask the judge for a mistrial so the defendant can have new trial with a new jury.

October 23, 2014

In Florida, Police Usually Need an Arrest Warrant to Make an Arrest for a Misdemeanor Outside His/Her Presence

In Florida, the police cannot just arrest any person he/she has probable cause to believe has committed a crime. A police officer does not need an arrest warrant signed by a judge to arrest a person for a felony charge or a misdemeanor that has occurred in his/her or another police officer's presence. However, a police officer cannot always arrest a person for a allegedly committing a misdemeanor crime that he/she or another officer did not see unless a judge has signed an arrest warrant. One exception is shoplifting or retail theft cases. Most shoplifting/retail theft cases occur in a store where a loss prevention officer or other store employee sees the theft or observes the suspect trying to leave the store without paying for an item(s). The loss prevention officer normally detains the suspect until the police arrive. Although the police officer was not present when the shoplifting crime allegedly occurred, the police officer is allowed to rely on the store employee's statement and any other evidence (such as a store video) to make an arrest without first getting an arrest warrant. On the contrary, if a witness approached a police officer and said a suspect was in possession of a small amount of marijuana (less than 20 grams of marijuana) and even showed the police officer recent incriminating pictures, the police officer could not arrest the suspect without an arrest warrant if the officer did not observe the marijuana.

In a recent shoplifting case near Jacksonville, Florida, a loss prevention officer at a department store observed the suspect select some items and leave the store without paying for them. The loss prevention officer, who is not a police officer, called the police and gave a description of the suspect and his vehicle to the police officer. The police officer stopped the suspect and arrested him for shoplifting. While searching the vehicle for the stolen items, the police officer found methamphetamine. The suspect was arrested for petit theft (a misdemeanor) and possession of methamphetamine (a felony).

The criminal defense lawyer moved to dismiss the charges arguing that the police officer could not stop and arrest the defendant for a misdemeanor charge outside of the police officer's presence. However, Florida law has a specific exception to this rule for shoplifting. Since the police officer could stop the suspect for the shoplifting charge and had a right to search for the stolen items, the shoplifting charge and the methamphetamine possession charge were both valid.

October 20, 2014

Florida Police Needed a Search Warrant to Track a Suspect's Cell Site Location

In Florida, a person has a Constitutional right to be free from unreasonable searches and seizures. Sometimes this is obvious. A police officer cannot just search a person's home or car without consent or a search warrant in most cases. However, it can also get complicated as old rules may be difficult to apply to newer technologies.

In a recent trafficking in cocaine case near Jacksonville, Florida, the case started as most drug cases do with a confidential information telling police that the defendant was moving large quantities of cocaine throughout the area. The informant indicated he had phone conversations on the suspect's cell phone where large cocaine transactions were discussed. With this information, the police obtained a pen register and trap and trace device on the suspect's phone with a court order. The pen register records the phone numbers dialed from that phone. The trap and trace device records the phone numbers of incoming calls to the phone.

The informant later told police that the suspect was going to make a large drug deal on a particular date. Without getting a court order, the police obtained information from the suspect's cell phone provider that helped the police track the defendant's real time location through his cell phone. Cell phones give off information as to its location that police can use to track a person with the cell phone. The police successfully located the suspect through his cell phone and stopped him. They found a kilogram of cocaine in his vehicle and arrested him for trafficking in cocaine.

The criminal defense lawyer filed a motion to suppress the evidence of the cocaine arguing that the police obtained the suspect's private cell phone information from his cell phone provider without a proper court order. The state argued that a person does not have a reasonable expectation of privacy in his/her cell phone signals to provide location information.

The court agreed with the criminal defense attorney. A person does have a privacy interest in the location signals emitted from his/her cell phone. A person may understand that a cell phone does relay location information, but a cell phone customer does not reasonably expect that information would be shared with the public or the police. As a result, it is reasonable for a cell phone customer to expect that his cell phone location information remain private, even when out in public and driving on public roads. Because a person has a reasonable expectation of privacy in the real time location signals sent by his/her cell phone, the police cannot obtain that information from the cell phone provider to track a suspect without a warrant. In this case, the police obtained that protected information without a warrant or other court order. Because the police found the suspect and the kilogram of cocaine in his vehicle as a result of the improperly obtained cell phone location information, the court suppressed the evidence of the cocaine, and the trafficking in cocaine charge was dismissed.

October 17, 2014

Criminal Conviction Reversed in Florida When Prosecutor Elicits Testimony Regarding a Defendant's Failure to Produce Evidence

In Florida, defendants in criminal cases have certain Constitutional rights that stay with them from the time they are arrested until their trial, if they choose to have one. One of those rights is the right to be considered innocent unless and until the state proves the defendant's guilt beyond a reasonable doubt. Many people are familiar with that right as it is one of the few things the TV shows get right, and it is a primary right that most people hear about along the way. But what does it mean?

When a person is charged with a crime in Florida, that person is entitled to a trial whereby a jury or judge decides whether the defendant is guilty or not guilty. At that trial, the defendant is presumed innocent. Only after the state presents sufficient evidence of the defendant's guilt, if the state ever does, does that presumption of innocent disappear. Because a defendant is presumed innocent and the state has the burden of proving the defendant's guilt beyond a reasonable doubt, the defendant and the criminal defense lawyer do not have have to present any evidence or provide any testimony to ensure a not guilty verdict. Of course the criminal defense attorney can put on as much evidence and testimony as he/she wants to support the defense, but he/she does not have to. If the defense puts on no evidence and merely decides to attack the state's evidence, the defendant must be found not guilty if the state never meets its burden of proof.

In conjunction with these rights and procedures, the state cannot state or imply to a jury that the defendant is supposed to present evidence proving he/she is not guilty. The state cannot make any comments about a defendant who either did not testify in court or refused to talk to police before the trial. The state cannot argue to the jury that the criminal defense lawyer failed to present evidence showing the defendant is not guilty.
For instance, in a recent felony theft case near Jacksonville, Florida, the state presented a detective to testify that he questioned the defendant before his arrest. The detective testified that he went to speak to the defendant to give him an opportunity to refute the theft allegations. The detective testified that the defendant did not make any statements or produce any documentation that sufficiently refuted the allegations so the detective arrested the defendant. The defendant's theft conviction was reversed. This is called improper burden shifting. As we discussed, the state has the burden of proof to establish the defendant's guilt beyond a reasonable doubt. The defendant does not have to say anything or produce any documentation showing he/she is not guilty. The state cannot elicit testimony at trial that discusses the failure of a defendant to produce evidence proving he/she is not guilty. That impermissibly shifts the burden to the defendant to show he/she is not guilty. If the state does that and the defendant is convicted, the conviction should be reversed.

October 13, 2014

There is a Difference Between Reckless Driving and Careless Driving in Florida

In Florida, there is a critical difference between careless driving and reckless driving, and that difference can be significant when it comes to what the state can do to punish a driver based on his/her driving. Careless driving in Florida is not defined well, but the statute discusses the obligation to drive in a careful and prudent manner with regard to all of the circumstances so as not to endanger the life, limb or property of another person. Reckless driving in Florida is defined as driving in a manner that knowingly disregards the safety of other people and property. For driving to be reckless, the manner of driving must be likely to cause death or serious bodily injury to another. Based on those definitions, it is hard to get a clear picture of the difference between careless driving and reckless driving. However, the effects can be severe.

If we are just talking about the driving, careless driving is a simple traffic ticket and a fine. Reckless driving is a criminal charge that can come with jail time. The state often considers driving careless driving when a person violates one or two traffic laws or possibly causes an accident while violating one traffic law. Reckless driving normally requires much more egregious driving. However, when a serious accident involving injuries or a death is involved, the state is more likely to err on the side of a criminal charge, i.e. reckless driving. This is where the difference can become very serious. If a person is driving recklessly and causes an accident that results in death, he/she will likely be charged with vehicular manslaughter which is very likely to result in prison time. Careless driving that results in a serious accident and death may only come with fines and driving school.

So, the question is: what is the practical difference between careless driving that has minimal punishments and reckless driving that can result in a felony conviction and a lengthy prison sentence if the accident is serious enough? It just depends on the circumstances. In a recent case south of Jacksonville, Florida, the defendant was driving 83 miles per hour on a two lane road where the speed limit was 55 miles per hour. He crashed into a vehicle making a left turn in front of him and killed one of the occupants. The state charged him with vehicular manslaughter alleging that driving that fast on that road was reckless driving. The court ultimately discharged the vehicular manslaughter charge because merely speeding in that area was not sufficient to prove reckless driving. Therefore, the defendant could not be charged with vehicular manslaughter.

Speeding alone is not likely to form the basis of a reckless driving or vehicular manslaughter charge. However, it depends on the circumstances. Driving 90 mph on the highway when the speed limit is 60 mph is probably not reckless driving. On the other hand, driving 50 mph in a residential neighborhood where the speed limit is 15 mph and kids are around may very well be reckless. Of course, other factors can contribute to a reckless driving charge (i.e. swerving, cell phone use, driving a large vehicle, curvy roads, trying to pass another vehicle, etc.). Likewise, as most people know, drunk driving is considered reckless driving under Florida law, and causing an accident while drunk driving is a near certain way to end up with a DUI and a manslaughter charge.

October 10, 2014

Florida Police Were Not Permitted to Search Hotel Room For Drugs With Occupant's Permission

The Constitution establishes privacy rights, and one of the more sacred privacy rights protects people from unreasonable searches and seizures when it comes to their property. For instance, in most cases, the police are not allowed to go into a person's residence without a valid search warrant or consent from the person who lives at the residence. The rules are somewhat different when it comes to hotel rooms. The police cannot just walk into a hotel room that is being rented by a hotel customer. Likewise, the police cannot merely get consent from the hotel owner or employee to go into a hotel room that is being rented by a hotel customer. The police must either have a valid search warrant or get permission to enter and search a hotel room from an authorized person who rented or is staying in the room.

In a recent drug case near Jacksonville, Florida, hotel management received an anonymous tip that the occupants of one of the hotel rooms had cocaine in the room. The hotel manager called the police. The police went to the hotel, got the room number and the name of the suspect who rented the room and then proceeded to the room. The police officers knocked on the door, and an individual answered. The police officers asked the individual if they could come in to search the room, and he agreed. Inside the room, the police found cocaine and drug paraphernalia. The defendant, who was the one who actually rented the room but did not answer the door, was arrested for possession of cocaine and possession of drug paraphernalia.

The criminal defense lawyer filed a motion to suppress the evidence of the cocaine found in the room based on the argument that the police did not have a legal basis to enter the room. The court agreed. The police cannot enter a hotel room without a search warrant or permission from an authorized person or a person with apparent authority to give the consent. Some guy staying in the room with the person who rented the room is not someone with authority to give the police consent to enter and search the room for drugs. The state tried to argue that the person who answered the door had apparent authority to give consent. The police can rely on someone who appears to live in a residence or to be staying in a hotel room to give authority to enter and search. However, in this case, the police knew the name of the person who rented the room, so it was as simple as the police asking the person who answered the door whether he was the person whose name was on the room registration. Because they didn't do that basic investigation, they could not rely on the guy's apparent authority to give consent. Since the police did not have legal justification to enter the room, the cocaine they found inside was suppressed.

October 1, 2014

Florida Police Lose Armed Robbery Case by Illegally Searching Trunk of Car

In a recent armed robbery case west of Jacksonville, Florida, three suspects entered the victim's home and stole certain items from him at gunpoint. The three suspects fled in a vehicle, and the victim called the police providing a description of the suspects and the vehicle. Shortly thereafter, a police officer saw a vehicle with three occupants that matched the descriptions given by the victim. The police officer stopped the vehicle and detained the occupants by handcuffing them and placing them in his police car. The police officer looked in the passenger compartment of the vehicle through the windows and did not see any evidence of the armed robbery. The police officer then opened the trunk and searched it. The police officer found a gun and drugs in the trunk. Based on this evidence, the police officer searched the passenger compartment more closely and found the items stolen in the armed robbery. Each of the occupants was arrested for armed robbery.

The criminal defense lawyers filed a motion to suppress all of the evidence arguing that the search of the trunk was illegal and that illegal search led to the subsequent search, thereby making it illegal as well. When the police stop someone in a vehicle and detain or arrest that person, they can no longer search the vehicle if the suspect is secured and no longer a threat to the officer. In the past, the police could conduct a "search incident to arrest" which was an automatic search of a car when the driver was arrested. The law changed, and now if the driver is secured, i.e. handcuffed and in the police car, that driver obviously is not a threat to the officer so the officer cannot just search the car for protection. If the police officer does have some specific reason to believe there is some danger, the police officer can search the car as a protective sweep. However, without that specific evidence of danger, the police officer can no longer search a vehicle just because the driver was arrested.

In this case, the police officer testified that he searched the trunk because he thought there might have been a suspect in the trunk. This was easily rejected by the court. A mere suspicion without any supportive facts is not going to be a legal basis for a search. A police officer must have a specific indication of evidence, danger or criminal activity to satisfy the search and seizure provisions of the Constitution.

Because the police officer searched the trunk without a legal basis, and that search was the catalyst for the subsequent search, none of the searches were legal, and all of the evidence was suppressed. As a result, the illegal search of the trunk undermined what would otherwise have been a pretty good armed robbery case.

Incidentally, had the police followed the law, they could have searched the entire vehicle fairly easily. They had a good, recent description of the vehicle and its occupants. If they had the victim come to the scene and identify the occupants, that would have been sufficient for an arrest. Upon arresting the vehicle occupants, the police could have seized the vehicle and moved it to their tow yard. When the police take possession of a vehicle under those circumstances, they are permitted to search the vehicle thoroughly as an inventory search. Under those circumstances, the police would have found all of the evidence in the vehicle lawfully, and the armed robbery case would have gone forward.

September 28, 2014

Anonymous Call Was Not Sufficient to Stop Defendant in Florida

In Florida, the police are not allowed to stop a vehicle without probable cause to believe the person committed a traffic violation or at least reasonable suspicion of criminal activity. Most stops are easily justified by the police with testimony that the driver was speeding, ran a red light or in violation of any other traffic law. However, if the police officer wants to stop a vehicle for another reason, the police officer must articulate a specific legal basis to do so.

In a recent case near Jacksonville, Florida, the police received an anonymous call of a disturbance at a residence. The caller neither provided his name nor any specifics as to criminal activity. The police officer arrived at the location as the defendant was driving away. The police officer motioned for the defendant to stop his vehicle and drove in front of it, blocking its path. Thereafter, the police officer recognized the driver as someone on probation whose driver's license was suspended and arrested him.

The criminal defense attorney filed a motion to suppress arguing that the police officer had no legal basis to stop the defendant who was driving away. When the police officer stopped the defendant and blocked his vehicle, this was considered a seizure under the law. The police officer must have a legal basis to effect such a seizure, such as specific information that the defendant was involved in criminal activity at the time.

The court found that there was no legal basis to stop the defendant in his vehicle. An anonymous tip does not provide the legal basis to conduct a stop of a suspect. An anonymous tip lacks the reliability necessary to justify a seizure. If the person fails to provide his/her name to police, that indicates a lack of reliability as anyone can tell the police anything for any reason if it is done anonymously. The other problem with the tip is that it did not provide any specific information as to criminal activity. A general complaint regarding a disturbance is not going to be specific enough to justify a seizure of a suspect.

In a situation like this, the police are always free to go to the location mentioned in the tip and investigate. However, unless they observe some signs of criminal activity on their own, an anonymous tip of a general problem is not going to be a basis for a stop or seizure. Because the police officer stopped the defendant without any specific indications of wrongdoing, the stop was determined to be unlawful and the case was thrown out.

Ironically, because the police officer recognized the defendant and knew he had a suspended license, if the police officer had just let the defendant pass and recognized him without stopping him, the police officer would have been authorized to stop the defendant at that point and arrest him for driving with a suspended license.

September 25, 2014

Police Officer Justified in Searching Pill Bottle in Florida Drug Case

In Florida, the police are not permitted to search a person's belongings unless the police officer has consent to search from someone authorized to provide such consent, the officer has probable cause in certain circumstances or the officer has a search warrant. Police officers often assume they can search a pill bottle because they believe there will be illegal drugs inside, but the existence of a pill bottle does not automatically entitled a police officer to search it.

In a recent case near Jacksonville, Florida, the police officer stopped the defendant driver for driving erratically. Upon approaching the defendant's vehicle, the police officer asked the driver if he could search his vehicle. The defendant agreed. The police officer found a pill bottle next to the driver's seat. The police officer noted the bottle had the driver's name on it and drug information for the drug Suboxone. However, the police officer said he could see into the bottle and recognized that one of the pills was Xanax and he did not recognize the other pill. Because the Xanax pill did not match the drug description on the bottle, the police officer opened the pill bottle and ultimately determined that the other pill was Oxycodone. The driver was arrested for possession of Oxycodone and Alprazolam (Xanax).

The criminal defense lawyer filed a motion to suppress the evidence of the Xanax and Oxycodone arguing that the police officer did not have a legal basis to search the pill bottle. Consent to search the car is not the same as consent to search every container within the car. The question, then, was the police officer had probable cause to search the pill bottle without permission. The court ruled that the police officer did have a legal basis to search the pill bottle. Assuming the police officer's testimony to be true, because the police officer could see that the pills in the bottle did not match the description of the pills on the bottle, there was reason to believe the defendant was in possession of drugs without a proper prescription. The court basically ruled that if a person has pills in a container that is not designated for that particular drug, the police will have a right to search the container and make an arrest. As a result, the conviction for possession of Oxycodone and Xanax was affirmed.

This does not mean that the police can search any pill container they see in the possession of a person. A pill container is certainly not evidence of criminal activity no matter what a police officer might assume. However, if the police officer testifies to specific, incriminating facts regarding the pill bottle, as in this case, the court may allow such a search.

September 22, 2014

Florida Court Finds Government Forfeiture of Home Used to Cultivate Marijuana is Unconstitutional

The War on Drugs rages on with big government-loving police and prosecutors seeking to take property from citizens for their involvement with the marijuana plant. In a recent case near Jacksonville, Florida, the War on Drugs manifested itself in the government's attempt to take a house from a person for growing some marijuana plants and seeling marijuana. Fortunately, the appellate court determined that this excessive display of big government overreach was unconstitutional as it violated the Eight Amendment to the Constitution.

The Florida forfeiture laws, which we have dealt with over and over again, allow the police to take property, and keep property, that was involved with, or has some close relationship to, certain criminal activity. Unfortunately for humanity and civilization, marijuana crimes are included among those that trigger the Florida forfeiture laws and allow the state to take property from people.

In a recent case near Jacksonville, Florida, an individual was convicted of manufacturing and selling marijuana out of his home. As part of that criminal case, the defendant was sentenced to a form of probation, community service and drug treatment. The local government also initiated forfeiture proceedings to take ownership of the house where the marijuana was found. The house was valued at approximately $250,000. The local judge agreed and let the government take the house. However, the case was appealed, and the appellate court overruled the judge.

The Eight Amendment to the Constitution prohibits cruel and unusual punishment and also specifically prohibits excessive fines. This applies to the Florida forfeiture laws. In determining whether a fine is excessive, the judge is supposed to consider whether the defendant is the type of person the forfeiture laws intended to address, other penalties to which the defendant is subject and the harm caused by the defendant. Applying these factors, and noting that the maximum fine the defendant could have received was $37,000, much less than the value of the home, the appellate court found that the harm caused by a marijuana charge was much less significant than the punishment and hardship from forfeiting a $250,000 home.

This should have been obvious to the judge. It is hard for anyone to argue that our criminal justice system should spend so much time, effort, resources and money on the marijuana plant. It is inconceivable that a person should lose an expensive home, or any expensive property, over the marijuana plant. This kind of case encapsulates the problems with big, abusive, overreaching, irrational government as much as any case does.