May 27, 2016

An Improper Promise Can Make a Statement Inadmissible in Florida

When the police in Florida believe a suspect committed a crime, they will often take steps to get that suspect to make admissions that can be used against the suspect in court. When the police take someone into custody and seek to get a statement from the suspect, the police have to read the suspect the Miranda warnings informing the suspect that he/she does not have to make any statement and has a right to a criminal defense lawyer. We advise people that it is almost always in a suspect's best interests to remain silent in those circumstances, as the Constitutional gives a person a right to do. It may be a good idea to talk to the police at some point, but it is generally smarter to do so once the suspect has a better idea of the allegations, issues and the process.

The police use a variety of tactics to get people to make statements that will incriminate themselves. However, not all such methods are legal. In order for a confession to be admissible in court, it must be voluntarily given. This does not just mean the police cannot beat a confession out of a suspect. It also refers to situations where the police use improper threats or promises to elicit a statement. In a recent robbery and attempted murder case near Jacksonville, Florida, the police were investigating a shooting and brought the suspect in for questioning. At first, the suspect denied any knowledge of the shooting. The police officers pressed the suspect and ultimately implied that if the suspect told the truth, as the police saw it, the suspect would likely face lesser felony charges. The suspect changed his story and admitted to involvement in the shooting.

The criminal defense attorney filed a motion to suppress the defendant's statement arguing it was not voluntary. The appellate court agreed. The police are not allowed to make improper promises of leniency to get the defendant to make a statement. Therefore, the police cannot suggest that the defendant would face lesser charges or receive some other benefit for making a statement.

The job of the police is to get evidence that they can use to make a strong case against the defendant. The stronger the state's case, the more leverage the state has to get a tougher sentence. Therefore, it is antithetical to think that offering the state more evidence to strengthen their case against you somehow translates into a lighter sentence for you. However, notwithstanding that obvious contradiction, it is also unconstitutional to offer a benefit for a statement as it affects the voluntariness of the statement.

May 23, 2016

Recorded Jail Call Leads to Drug Trafficking Conviction for Florida Inmate

When a person is arrested for a crime in Florida, he/she is taken to the local jail. If he/she cannot make bond, he/she will remain there until the criminal case is resolved. Inmates in the local jail generally have phone privileges, but they are informed that each call is recorded. In many cases, particularly the more serious cases and cases that are likely to go to trial, prosecutors will retrieve the jail call recordings in the hopes of finding incriminating statements made by the defendant. While all inmates know these jail calls are recorded by the state, it is amazing how often inmates say things during these jail calls that impair their cases.

As criminal defense lawyers in Jacksonville, Florida, we always inform our clients never to talk about their cases during jail calls. The risk of doing so drastically outweighs any benefit of having such a recorded conversation.

For example, in a recent drug trafficking case near Jacksonville, Florida, the defendant was charged with conspiracy to traffic in various controlled substances by ordering them off of the internet from a foreign country. The police were able to obtain a printout of all of the drug orders the defendant made from his computer. They were able to access his computer because the defendant called a friend from jail and gave the friend his computer username and password and asked the friend to access the site he used to order the drugs. The state obtained a copy of this recorded phone call and used that information to get into the defendant's computer.

The criminal defense lawyer filed motions to try and keep out the evidence of the defendant's purchase orders over the internet. However, the court rejected those arguments. The state was able to use the defendant's recorded jail call with his friend to show how the defendant was using his computer to bring in large quantities of drugs by purchasing them over the internet. Had the defendant not spoken about this in a recorded jail call, the state may have never come across this very incriminating evidence.

May 20, 2016

If You Refuse to Submit a DNA Sample to Police in Florida, Can the State Use That Refusal Against You in Court?

In Florida, most people know that their Fifth Amendment right to remain silent means that the state cannot normally use a person's silence in response to police questioning against them in court. However, does this same principle extend to a refusal to provide DNA?

In a recent murder case south of Jacksonville, Florida, the police responded to an apartment where they saw signs that the victim had been attacked. The police were able to collect DNA from the apartment which they believed came from the attacker. They went to question the defendant who was the ex-boyfriend of the victim. The police asked if they could take a DNA sample from the defendant (now done with a simple swab inside a person's mouth) to compare it to what they found in the apartment. The defendant refused to give a DNA sample.

The defendant was ultimately arrested for murder. The state tried to admit the evidence that the defendant refused to provide a DNA sample. They argued that the defendant's refusal was evidence of his consciousness of guilt. The trial court let the state admit the evidence. However, the case was reversed on appeal. The appellate court found it was particularly important that the police did not tell the defendant that if he refused to provide a DNA sample, that could be used against him in court, similar to Miranda warnings that are given. The defendant was given the impression that giving the DNA sample was optional, and if he refused, there would be no adverse consequences. Had the police made the proper disclosure to the defendant and he still refused, then the state would likely have been able to admit evidence of his refusal at the trial.

May 6, 2016

The Fifth Amendment Protects a Person's Right to Remain Silent Before Arrest and Before Miranda Warnings

Most people understand that everyone has a Constitutional right to remain silent. This is a right afforded to people in the Fifth Amendment to the U.S. Constitution and the Florida Constitution. As many people are aware, this means that the police cannot force you to give a statement or say anything that might be used as evidence against you in a criminal case. It also allows you to refuse to testify at a criminal trial. If you do exercise your right to remain silent upon arrest, after arrest or at trial, the state cannot use your silence against you. That means the state cannot imply during your criminal case or at trial that you remained silent because you are guilty. The state cannot make any suggestion to the jury about your decision to remain silent or why you made that decision.

One question that occasionally comes up is when this right to remain silent becomes relevant. It is clear that a person is protected by the Fifth Amendment upon an arrest, in all pretrial proceedings and at the trial. Does a person have the same protection before an arrest?

In a murder case near Jacksonville, Florida, the police responded to a shooting and found a dead body in the same house as the defendant. The police asked the defendant several questions about the situation, but the defendant did not answer. At this point, the defendant was not under arrest and had not been informed of the Miranda warnings which discuss the right to remain silent, among other rights. The defendant was ultimately arrested for murder. At the trial, the state put the police officer on the stand and asked him a variety of questions about how he asked questions of the defendant at the crime scene, but she remained silent. The state used this testimony to suggest her silence was evidence of her guilt. The defendant did not testify at the trial.

The defendant was convicted of murder, but her criminal defense lawyer appealed arguing that the Florida Constitution protects a person from having to make any statements even before an arrest and Miranda warnings are given. The Florida Supreme Court agreed. The Florida Constitution provides that no person shall be forced to be a witness against oneself in any criminal matter. This is considered a very significant right under Florida law and is broadly construed to favor the defendant. Normally, this right attaches upon an arrest, but Florida interprets its Constitution to protect someone even before an arrest or Miranda warnings. The Court found that the right to remain silent exists whether Miranda warnings are given or not. The fact that the police officer notifies a person of his/her right to remain silent does not activate that right or make it more effective.

In conclusion, the state in Florida cannot use a defendant's silence before arrest and before Miranda warnings at trial to suggest that silence is evidence of the defendant's guilt. It violates the defendant's Constitutional right to remain silent as it puts the defendant in a position to feel compelled to produce evidence to refute the implication of guilt, which is not Constitutional. However, if a defendant does testify at trial and the defendant's pre-arrest silence is inconsistent with that trial testimony, the state can likely use the pre-arrest silence to impeach the defendant at trial.

May 1, 2016

Florida Vehicular Homicide Conviction Based on Speeding Alone Reversed

In Florida, vehicular manslaughter cases are very serious. That seems obvious, but states and counties treat these crimes differently depending on how prosecutors' offices and judges view them. Vehicular homicide often involves a defendant who did not intend to commit a crime and has never been in trouble before doing something with the most tragic results. Some places view this as worthy of probation. Others view it as worthy of long prison sentences. In Jacksonville, Florida, they are most often viewed in the latter manner and come with significant prison sentences.

Most vehicular homicide cases involve a person who causes a crash that results in death while being impaired from alcohol or drugs. In that case, the police officer will investigate the driver at the scene, do field sobriety exercises if practicable, request a breathalyzer test after the arrest at the jail or request that blood be drawn for testing if the driver goes to the hospital.

However, the state can charge a person with vehicular homicide even if no drugs or alcohol was involved with the crash. The law in Florida distinguishes accidents involving negligence from those involving reckless driving. Negligence cases normally involve a driver violating one or two traffic laws resulting in a crash. For example, if a person was speeding, ran a red light or pulled out in front of another vehicle and caused a deadly crash, that is likely to be considered negligence. Negligent conduct results in traffic tickets and lawsuits but not criminal charges. If a person's driving goes beyond that kind of negligence and is particularly egregious, it can be considered reckless. For instance, driving 65 miles per hour in a 45 miles per hour zone and causing a crash is probably going to be considered negligence given how common speeding is. However, driving 85 mph erratically in a 45 mph zone in the rain certainly comes closer to recklessness and criminal behavior. Ultimately, the police decide if it is sufficient for an arrest, the prosecutor decides if it is sufficient to file criminal charges and a judge or jury decides if the defendant is in fact guilty of the crime.

In a vehicular homicide case near Jacksonville, Florida, a woman drove off the side of the road at a high rate of speed and hit a tree, killing her passenger. She was charged with vehicular homicide and convicted at trial. The criminal defense attorney appealed because it appeared the only evidence that she was reckless was her speed. There was no evidence that she was drunk or impaired from drugs. A accident reconstructionist for the state examined the evidence of the crash including the skid marks and gave the opinion that the driver was traveling at approximately 80 miles per hour in a 65 miles per hour zone. There was no other evidence of improper driving.

The vehicular homicide conviction was reversed. Reckless driving requires the driver to knowingly drive in a manner that is likely to cause death or serious bodily injury. That does not mean the state has to prove the driver intended to cause a crash or kill someone. The state must prove the driver intended to do something so dangerous that a deadly crash was likely. Intentionally drinking a lot of alcohol and driving or intentionally driving 100 mph in a 45 mph zone in the rain or in a residential areas with kids playing would likely qualify.

In this case, the court determined as a matter of law that speeding alone, especially when the speed was not too excessive, was not reckless. As a result, the state could not sustain a conviction for vehicular homicide without evidence of other reckless conduct.

April 28, 2016

If a Suspect in Florida Throws Evidence Away, it Becomes Abandoned Property and Fair Game for Police

It is pretty clear in Florida that a police officer cannot search a suspect for drugs or other evidence of illegal activity without a proper legal basis such as consent, probable cause or a valid arrest. A police officer might be able to do a quick pat down of a suspect if there is some evidence of criminal activity and that leads more evidence which can lead to a more thorough search. However, there has to be some specific information indicating criminal activity before a search can commence, unless the suspect agrees to a search. That applies to a person's body and clothes as well as his/her possessions. it does not apply to property that has been abandoned under the law.

As an example, in a trafficking in cocaine case near Jacksonville, Florida, the suspect was stopped by police while driving. After it became clear the police officer was investigating the suspect for a drug related crime, the suspect threw a small bag out of the car window. The police officer probably did not have a legal basis to search the vehicle or the suspect at that point, but he walked around the car and retrieved the bag which contained cocaine. The suspect was arrested for trafficking in cocaine. The criminal defense lawyer filed a motion to suppress the bag of cocaine arguing that the police officer did not have probable cause to search the vehicle or the bag that came from the vehicle. The court disagreed. Once the suspect threw the bag away from the vehicle, under Florida law, that bag became abandoned, and the police have a right to search abandoned property.

This comes up in other situations as well. One common scenario occurs when the police believe a suspect is growing marijuana or otherwise manufacturing drugs in his/her home. The police will often go through a person's trash outside to see if they can find discarded items that are commonly used to manufacture drugs. As long as the property is trash and the police do not have to enter a person's property to retrieve it, this is normally considered abandoned property that police can search and seize without a search warrant. Of course, the police cannot go into your house or garage or otherwise trespass on to your property to take your trash, but if you leave a trashcan out on the curb for pickup, that is something the police can likely go through.

April 25, 2016

Police in Florida Interrogating a Suspect Have to Alert Suspect That His/Her Attorney is Present

Most people in Florida are aware of the fact that when the police take someone into custody, that person has a right to remain silent and not talk to the police and have a right to an attorney before or during any discussion with police. The police are required to notify a suspect of these rights before taking any statement from a suspect in custody. However, there are times when the police are investigating a crime and ask a suspect to come to the police station and voluntarily speak to the police. If the suspect agrees, that suspect is likely not considered to be in custody, and the police do not have to read the suspect his/her rights about remaining silent and having an attorney. Many suspects do voluntarily speak to police and give incriminating statements without ever hearing their Miranda rights because they were not technically in custody. However, an incriminating statement made to the police is equally detrimental, whether the suspect was previously arrested or met with the police voluntarily and without being in custody.

A situation sometimes arises when a suspect is speaking with the police and his/her lawyer shows up or calls the police department to try and talk to the suspect/client or stop the questioning altogether. Do the police have to alert the suspect that his/her lawyer is outside or calling on the phone wanting to speak wit the suspect? Does it matter if the suspect never exercised his/her right to remain silent and request an attorney?

On legal shows on TV, you often see a police officer interrogating a suspect and then his/her lawyer barges into the room to stop the questioning. It does not work that way in real life. No lawyer is getting back to the interrogation room without one or more police officers letting the lawyer get back there. More likely, and how it seems to work in Jacksonville, Florida, the lawyer calls the police department or walks into the reception area and is told he/she cannot have access to the client, and the questioning continues.

That is no longer legal. A recent murder case south of Jacksonville, Florida decided by the Florida Supreme Court dealt with a murder suspect who voluntarily came to the police station to speak with the police. In the meantime, his parents hired a criminal defense lawyer who was told the suspect was giving a statement to police so he immediately went to the police station. The attorney asked to see his client, but he was denied. The suspect was not told that a criminal defense lawyer had been hired and was present at the police station. Shortly thereafter, the suspect confessed to the murder.

The criminal defense attorney filed a motion to suppress the confession arguing that the defendant was denied his due process rights since the police did not tell him his new lawyer was outside and requesting to speak with him. The motion was denied, but the issue made its way to the Florida Supreme Court. That Court held that the police have to tell the suspect that his/her criminal defense lawyer is present and wants to speak with the client. Then, the suspect has a right to stop the interrogation and consult with his/her criminal defense attorney. If the police fail to do this, the statement will be suppressed.

This is now the proper procedure whether the suspect is in custody after an arrest or came to meet with the police voluntarily. It is also the proper procedure whether or not the suspect himself requests a criminal defense lawyer prior to finding out a criminal defense attorney has been hired for him/her and is present.

April 22, 2016

Florida Injunctions Against Domestic Violence Do Little To Prevent Violence

A recent story out of Seminole County, Florida has made headlines spotlighting the ineffectiveness of injunctions for protection against domestic violence in cases where the respondent has no regard for human life. Henry Brown killed his wife, two children, and himself in a domestic dispute after a judge issued an injunction for protection against him. The injunction specifically ordered that Brown turn over his firearms to law enforcement. He used those same firearms to murder his family and to take his own life. SLG Parnter John Gihon spoke to News 13 Orlando about violations of injunctions. You can read the story here.

The question is what could have been done to prevent this senseless and brutal act? Unfortunately, injunctions are usually not the answer. Any person who violates an injunction for protection against domestic violence in Florida is guilty of a first degree misdemeanor. The maximum penalty for a first degree misdemeanor is one year in jail. Very rarely will anybody with little or no record receive a length jail sentence. But the real problem is that a person who is so filled with rage that they are willing to kill children and themselves are not going to be deterred by an injunction and threat of up to 1 year in jail.

But what about the guns? What if law enforcement proactively went and retrieved Henry Brown's guns after the injunction was set in place. Unfortunately, the sad and unfulfilling answer is that this just simply is not practical and has very little correlation to potential violence. First, a determined person will find other firearms or other means to achieve his or her sinister desires. Second, countless injunctions are issued everyday throughout the State with varying degrees of conduct underlying each case. Law enforcement doesn't have the manpower to determine whether the respondent has firearms, determine how many firearms respondents have, and enforce them turning over those firearms. The same argument could be made for DUIs or other crimes. If a person's license is suspended for DUI, should law enforcement monitor that person 24 hours a day and 7 days a week to ensure that they don't drive? Regardless, if that person drives while impaired and kills an innocent victim, people will question why that person was able to drive in the first place. It just simply isn't practical to proactively enforce each provision of an injunction.

So how are violations of injunctions enforced? The sad truth is that it is often the victim reporting the violation to law enforcement that will enact a violation of injunction investigation. Often times, like in the case of Henry Brown, it is too late by then and the damage has been done.

Are Injunctions useless? No. Absolutely not. In cases where the respondent has something to lose that they are afraid of losing, like their liberty, their children, their job, or their money, an injunction can provide a victim of domestic violence with relief from badgering, verbal abuse, insults, potential for physical confrontation and other forms of violence. In the vase majority of cases, both sides want to stay away from each other. The injunction sets the terms of their separation.

There is a dark side to injunctions as well. It takes almost no evidence to obtain an injunction. Judges often want to issue the injunction as quickly as possible and many times will put pressure on the respondent to concede to the injunction. Injunctions are used as weapons in divorce proceedings and child custody battles. Unwitting people often concede to injunctions because they don't want to go near the petitioner, but they don't realize that they are giving up certain rights.

The moral of the story is that injunctions can be effective tools to protect true victims of domestic violence when the respondent has something that he or she doesn't want to lose. However, injunctions can also be misused and will have no effect on a person so enraged that they are willing to kill and to die to satisfy that rage.

You can read more about Violation of Injunctions in Florida here.

April 21, 2016

House of Representatives Panel Voted to Pass a New Email Privacy Bill

As technology advances with computers and cell phones and newer forms of communication, old laws and cases do not always properly address how our privacy rights might be affected, and how the government can look at or seize our data in criminal cases. We have written previous articles about when and how the police can obtain data on cell phones before and after an arrest. In many cases, the state has broad authority to access this information because search and seizure case law does not properly characterize the data and the methods used to acquire the data.

Emails are another form of data that are often the coveted by police officers looking to investigate criminal activity quickly and without the checks and balances found in search and seizure law. However, the House of Representatives recently took steps to pass a law that would protect old emails. An old law that people probably are not aware of allowed the government to look at old, private emails if they are more than six months old with only a subpoena, which does not involve much, if any, judicial oversight. It's hard to believe that the government practically had free reign to look at any of your old emails as long as a relatively short period of time has passed. This was an obsolete law that was written before emailing and texting became common forms of communication. However, this new law would require the government to get a warrant signed by a judge to see any emails, text messages, electronic photographs and instant messages no matter how old they are. The arbitrary six month waiting period to avoid the warrant requirement would be eliminated.

As much of a no brainer as this new law seems to be, keep in mind that this proposed law still needs to be voted on by the full House of Representatives and then move through the normal channels from there. So, while it seems like an obvious law to fix a blatant violation of the constitutional right to privacy, depending on this House of Representatives to do anything helpful is a shaky proposition. Hopefully, this will be an exception, and it will become the law quickly. In the meantime, the government can still read any of your emails and text messages whenever they want and without a warrant as long as they are more than six months old.

April 18, 2016

Florida Defendant Properly Charged with Driving With a Suspended License on Gas Powered Bicycle

In Florida, most people are aware that if your driver's license becomes suspended for any reason, it is a crime to drive a vehicle. It is usually a misdemeanor crime that is not treated too harshly in court. However, multiple driving with a suspended license arrests and convictions can prolong the length of the suspension which can lead to more driving with a suspended license arrests and more suspensions, and so on. Also, if you get a few driving with a suspended license convictions, you can be charged with a felony for the next one, and people often get jail time or even prison time for these charges in felony court.

In a driving with a suspended license case just south of Jacksonville, Florida, a defendant was arrested while riding a gas powered bicycle after his driver's license had been suspended. The criminal defense lawyer filed a motion to dismiss the charge. One can only be convicted of driving with a suspended license if he/she is operating a "motor vehicle". The criminal defense attorney properly established that, under Florida law, a "motor vehicle" excludes vehicles moved solely by human power and also motorized bicycles and wheelchairs.

The prosecutor disagreed arguing that this gas powered bicycle is different from a motorized bicycle under Florida law. A separate Florida statute defines a "motorized bicycle" as one that has an "electric helper motor" that cannot travel more than 20 miles per hour. The police officer said the defendant was traveling in excess of 30 miles per hour.

The court sided with the state and allowed the state to prosecute the defendant for riding a gas powered motorcycle while having a suspended license. Obviously, the law was intended to deal with people driving regular motor vehicles. However, due to expansions of the law, the state can charge a person with driving with a suspended driver's license for driving other kinds of motorized vehicles.

April 15, 2016

Florida Murder Defendant Cannot Use Stand Your Ground Law When He Sought Out Conflict With Victim

The Stand Your Ground law in Florida is a much publicized area of Florida criminal law that addresses when a defendant can gain immunity for using force and causing death or serious injury in self defense. It is not available to every defendant who is charged with a serious violent crime, but it can be a very helpful tool when a defendant is eligible to assert the Stand Your Ground law in Florida.

A recent murder case south of Jacksonville, Florida illustrates a situation where a defendant was not allowed to assert the Stand Your Ground law. As an initial matter, a defendant charged with a violent crime can only use the Stand Your Ground law in Florida if he/she was facing an imminent threat of death or serious injury which prompted him/her to use force. "Imminent" under Florida law is understood to mean something that is about to happen, not something that is expected to, or might, happen some time in the future. In this case, the defendant and his co-worker had a conflict at work. The victim told the defendant that after work, when he sees the defendant, he is going to stab him. Thereafter, the defendant armed himself with a knife and confronted the victim. The two got into a fight, and the defendant stabbed the victim, killing him.

The criminal defense lawyer for the defendant argued that the defendant stabbed the victim in self defense as he was legitimately scared that the victim would stab him, as he said he would earlier in the day.

The court rejected the Stand Your Ground motion. The court found that the threat from the victim was not "imminent" because it was supposed to take place at a later time. Additionally, the court found that the defendant's use of force against the victim was not reasonable. In order to assert the Stand Your Ground immunity, the defendant must show that the force he used was reasonable in light of the threat he faced. In this case, when the defendant sought out the victim, there was no indication that the victim had a knife. The two fought for a short period of time, and then the defendant stabbed the victim. Stabbing someone is not usually going to be a reasonable use of force when two people are fighting and there is no evidence the other person is armed.

Therefore, because the threat from the victim was not imminent, the defendant initiated the violence and the defendant used excessive force, his Stand Your Ground motion was properly denied.

April 12, 2016

Landlords Can No Longer Ban Tenants Based Solely on a Prior Criminal Record

As criminal defense lawyers in Jacksonville, Florida, we receive many calls from people who had a criminal case in their past and are suffering the effects of it many years later. They are finding it difficult to get a job or to get into school or even to rent an apartment. For these people, we can help by sealing or expunging their prior criminal charge, if they are eligible. However, the rules for sealing or expunging a criminal charge in Florida are fairly strict, and many people are not eligible. if you have a criminal record and want to know if you are eligible to have a prior criminal case sealed or expunged, feel free to call us with questions.

It is one thing to have to disclose a prior criminal record on an employment application (most people expect that), but a criminal record often comes up when someone is trying to rent a house or apartment. Prospective tenants do get rejected based on criminal records, even if the prior criminal charge was minor and/or occurred many years ago. The federal government says this practice violates the law. The United States Department of Housing and Urban Development has issued a statement indicating that is is illegal for landlords to reject a tenant applicant based solely on an arrest record or prior conviction(s). This practice violates fair housing laws when a landlord does not consider how serous the prior crime(s) is and whether the applicant will have a negative impact on other tenants. Obviously, people with minor criminal records and people who have not had any trouble with the law in many years are less likely to be a problem to other tenants. Those individuals should have their applications for housing properly considered just like anyone else without a criminal record. To deny the application for anyone with a criminal record violates fair housing laws.