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.


December 2, 2014

The State Does Not Necessarily Have to Disclose Identity of Confidential Informant in Florida

In Florida, many drug trafficking and other drug crimes start when a confidential information gives information to the police about a suspect. Normally, a person is arrested for a drug crime or some other crime, and in order to improve his/her position, he/she gives information to the police about some other person allegedly involved in criminal activity. A confidential informant is exactly what it sounds like. It is a person who gives information to the police who wants to remain secret. The police also want to keep his identity secret so the person can continue to have access to the suspect without suspicion and also to protect him/her from retaliation.

In many cases, once the police get the information from the confidential informant (CI), the police go and begin their own investigation to include surveillance, undercover drug buys and search warrants. They make their drug case based on what the police observe through the surveillance, drug buys and searches. They do not necessarily use the CI to make the new case; they use him/her for preliminary information to begin their investigation. In other words, while the CI provided the information, he/she was not involved in the investigation that resulted in the charges. If this is the case, the state may not have to reveal the identity of the CI. The criminal defense lawyer may file a motion requesting the identity of the CI, but the discovery rules in Florida protect a CI from disclosure. The general rule is the state does not have to disclose the identity of the CI unless the state plans to have the CI testify at a hearing or trial. If the CI made an undercover buy or was integral to the conduct that resulted in the pending charges, it is likely that the state would have to reveal his/her identity at some point. However, if the CI was just used for information and the case was made by the police, the defendant may never know the identity of the CI throughout the course of the case.

November 29, 2014

Florida Police Try to Use "High Crime Area" to Justify Search

The constitution protects people in Florida and other states from unreasonable searches and seizures. That means the police cannot come up to a person and make demands, or search them, without specific evidence that the person is engaged in criminal activity or has evidence of criminal activity. The police often try to use the phrase "high crime area" to justify questionable searches that certainly would not be permissible in other areas. Granted, there are high crime areas in the Jacksonville, Florida area and throughout Florida, but the police cannot rely on that vague phrase alone to justify a search. The police need specific indications of criminal activity.

In a recent case near Jacksonville, Florida, the police were patrolling a "high crime area" and saw a man standing in a driveway with his hands in his pockets. The police approached him and demanded that he remove his hands from his pockets. The man refused. The police then asked the man if they could search him, and he refused that as well. The police then patted him down, felt what they believed to be cocaine in his pocket, removed the item which was a bag of cocaine and arrested him for possession of cocaine.

The criminal defense lawyer filed a motion to suppress the evidence of the cocaine based on the illegality of the search. Being in a high crime area is not a basis for a search. In this case, assuming the suspect was in a high crime area, he was doing nothing else to indicate he was involved in criminal activity. When the police came up to him and demanded that he take his hands from his pockets, that becomes a seizure. In order for that to be valid, the police must have some specific evidence of criminal activity. The police can, at times, pat someone down if they believe the person may be armed and there is a police safety issues. But again, they can't just pat anyone down in a "high crime area". They still need something specific to indicate there is a danger.

The police were free to approach the man and ask him if he would consent to a search of his pockets. They don't need evidence or probable cause to just ask. However, once the man refused, they cannot move forward with a pat down or a search if they do not have the specific indicators justifying it. In this case, they did not so the evidence of the cocaine was thrown out along with the possession of cocaine charge.

November 26, 2014

Florida Statute of Limitations Does Not Run While Defendant is Continually Absent from the State

In Florida, if the state believes a person has committed a crime, there is going to be a statute of limitations attached to that case. The statute of limitations in Florida means that the state has a certain period of time from the date the crime was committed to prosecute the case. With some exceptions, if the state does not prosecute the case within the required period of time, the criminal defense lawyer can file a motion to dismiss the charges. The number of years required by the Florida statute of limitations varies depending on the criminal charge, but two to four years is fairly common.

For instance, if the state believes a person committed a misdemeanor crime and four years passes before the state arrests the suspect, that would likely be a statute of limitations issue if the suspect has been living in the state of Florida for all or most of that time. The state is obligated to conduct a diligent search to find the suspect and bring charges against him in a timely manner. The state can check driver's license records, utility records, traffic tickets and other methods to locate a suspect living in Florida. The reason behind the statute of limitations is that a suspect has a constitutional right to defend him/herself against criminal charges. If the state delays and takes too long to prosecute a suspect, witnesses may disappear or forget what happened which could compromise a defendant's ability to present a defense.

There are exceptions to the statute of limitations, however. Another way to say this is that certain events may toll the statute of limitations, or stop the time from running. For instance, the state is not required to search for a person who is out of the state of Florida for an extended period of time. Therefore, if a suspect allegedly commits a misdemeanor crime in 2010 and then leaves Florida for three years and is ultimately arrested for the crime in 2014. The defendant may not be able to use the statute of limitations to dismiss the case.

The state often does not do their job when it comes to diligently searching for suspects who are in Florida within a reasonable period of time. At Shorstein, Lasnetski & Gihon, LLC, we often get calls from people who find out they have outstanding warrants in Florida from years ago. We ask some questions and find out they have been in Florida for years, or at least long enough for the statute of limitations to run. Sometimes, they have been issued traffic citations and had other encounters with the police while the warrants were outstanding, yet they were not arrested. In those cases, we can often get the criminal cases dismissed based on the statute of limitations. If you think you might have an old warrant for your arrest and the statute of limitations might be a defense in your case, feel free to contact us for a free consultation.

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.