February 4, 2016

United States Supreme Court to Decide if Police Can Search Your Cell Phone Without a Warrant

When a person in Florida gets arrested for a crime, the police are generally permitted to search him/her. This is considered a search incident to an arrest, and it allows the police officer to search the suspect to make sure the suspect does not possess anything that could harm the police officer as the suspect is placed in the police car, driven to jail and booked into the jail. The police can also search the person for evidence of the crime if the officer has a reasonable basis to believe the suspect has evidence of the crime or any weapon that could put the officer's safety at risk.

Does this authorization to search a suspect incident to an arrest extend to all of the suspect's possessions? The law used to allow a police officer to search a person's vehicle if the suspect is arrested in or at his/her vehicle. This kind of search really did not comport with the logic behind a search incident to an arrest. Once a person is arrested, handcuffed and placed in the police car, he/she does not have much of an opportunity to grab a weapon in his/her car and harm the officer. The law was changed by a Supreme Court case a few years ago which now only allows the police to search a vehicle incident to an arrest if the suspect has access to the car at the time of the arrest. This usually is not the case since police officers generally handcuff the suspect and put him/her in the police car when the arrest is made.

What are the search and seizure rules when it comes to cell phones at the time of an arrest? Cell phones have obviously evolved over the years to the point that they can contain a lot of information, including incriminating information, such as contacts, phone numbers, notes, photographs, websites, text messages, emails and other data and communications. A police officer could learn a lot about a person and criminal activity fairly quickly by looking through one's cell phone. On the other hand, cell phones are more like computers today, and police are generally not allowed to search a person's computer without a search warrant or consent from the owner.

The United States Supreme Court is expected to decide two cases that involve police searching cell phones at the time of an arrest without a search warrant. In both cases, the criminal defense lawyers filed motions to suppress incriminating evidence found on the cell phones. I anticipate that the Court will decide that a police officer cannot search a person's cell phone without consent or a search warrant upon an arrest. The main reason for a search of a person incident to arrest and his/her immediate possessions is to make sure the person does not have anything that could harm the officer. There is also an issue of making sure evidence does not get destroyed in the time it would take to get a search warrant. These factors seem to weigh in favor of requiring consent or a search warrant. Obviously, a cell phone does not pose a safety risk to the officer. Additionally, there is not necessarily going to be evidence of criminal activity on a cell phone, but if the police develop information to suggest there is evidence on the cell phone, they can take possession of it and apply for a search warrant, the way most searches of private property are supposed to begin.

January 29, 2016

There Are Some Exceptions to the Search Warrant Requirement in Florida, but They Are Limited

In Florida, the police are not generally allowed to enter a person's residence without a valid search warrant or consent to enter and search by the owner or someone with authorization to give the consent to the police. Perhaps the strongest privacy rights and right to be free from unreasonable search and seizure by police is in one's home. However, there are some limited circumstances when a police officer can enter your home without consent or a search warrant.

For instance, there is a concept in criminal and search and seizure law that deals with exigent circumstances, or emergency situations. The police might be able to enter your home without a search warrant or consent if there is specific evidence of a medical emergency inside. An example might be if the police received a call of a hostage situation in a house and heard gunshots and screaming, the police would likely be able to go into the house to see if someone's life or health was in danger. The police would not be able to use the emergency as an excuse to search the place, but if they did see some illegal drugs or evidence of other illegal activity while they were lawfully in the home, they would be able to pursue that.

To use this exigent circumstances exception in Florida, there must be clear and specific evidence of some medical or similar problem that needs immediate attention. In a possession of Methamphetamine case near Jacksonville, Florida, the police drove by a house they suspected was being used to make Methamphetamine. They saw that the front door was open, some lights were on and mail was on the floor near the door. The police officer used that as an excuse to go inside to check on the welfare of the residents. Once inside, he saw Methamphetamine and materials used to make Methamphetamine. The resident who was home at the time was not in any medical distress, but he was arrested for Manufacture of Methamphetamine.

The criminal defense lawyer filed a motion to suppress the Methamphetamine and Methamphetamine making materials because they were found as a result of an illegal search. The court agreed and threw out the Methamphetamine evidence. The police officer could not articulate any specific reasons why he thought a medical emergency was taking place in the home and needed immediate attention. An open front door with mail on the floor is far from a sufficient basis to circumvent the usual requirement that a police officer must get a valid search warrant before entering someone's home without consent.

January 22, 2016

Florida Jury in Criminal Trial Wants Witness Testimony Read Back to Them.

When both sides to a criminal case finish presenting evidence, questioning the other side's witnesses and making their arguments, the jury goes into the jury room to deliberate and try to reach a verdict. They use their memories of and notes from the testimony, the law that is read to them by the judge and any exhibits that were entered during the criminal trial. Sometimes, a jury wants to re-hear specific testimony that was elicited during the trial. Is the judge allowed to get a transcript of the witness' testimony and read it back to the jury or let the jury take the transcript with them into the jury room in a criminal case?

In a recent gun and drug case near Jacksonville, Florida, the jury asked the judge if he could read a transcript of a police witness' testimony back to them. The criminal defense lawyer agreed as long as the judge read back all of the detective's testimony including the parts where the criminal defense attorney was cross-examining the detective. The judge did it a different way. The judge allowed the jury to decide what parts of the detective's testimony they wanted to hear. The jury was only interested in hearing the testimony elicited by the state without hearing some of the testimony that would likely be beneficial to the defendant. The criminal defense lawyer objected to reading just a part of the detective's testimony, but he was overruled.

In Florida criminal cases, the judge is allowed to read back certain testimony of witnesses when the jury makes the request. The judge has discretion to make this determination. The judge is also allowed to read back just a part of the witness' testimony if that is what the jury is requesting. However, the judge may not read back a part of a witness' testimony if it would be misleading and the criminal defense lawyer's cross-examination of the witness is within the scope of the jury's request. The judge may not read back partial testimony to a jury that would bolster one side's version of the case if there is relevant cross- examination on the matter.

In this case, the judge's action resulted in a reversal of the conviction on gun and drug charges forcing a new trial. The judge's limitation on the re-read testimony that left out the criminal defense attorney's cross-examination placed undue emphasis on the state's version of the case which was a serious enough error to necessitate a new trial.

January 16, 2016

Can the Police in Florida Search a Suspicious Package Sent Through the Mail?

Every now and then, as criminal defense lawyers in Jacksonville, Florida, we get possession of drug or drug trafficking cases that involve someone sending a package containing drugs through the mail. Sometimes, the package of illegal drugs is actually addressed to a specific person. Other times, the drug package is addressed anonymously (i.e. to "Resident") or addressed to a fake person. A question often arises as to if and when the police are allowed to open the package and search it. Sometimes, someone at the mail facility notices that the package is suspicious and contacts the police. Other times, the police might have officers at the facility looking for specific packages. Drug packages can be suspicious based on how they are addressed, where they are from and how they are packaged.

A possession of marijuana case near Jacksonville, Florida involved a box of marijuana that was sent to a friend of the defendant through the United States Post Office. The package came from California which is one of the suspicious factors the police look for. The package was sent to an apartment, but the name on the package did not match anyone who was listed as a resident at the apartment complex. That was another red flag. The renter of the apartment, a friend of the defendant's, accepted the package and signed for it in the name of the person listed on the package, which was not her true name. The police were involved with the delivery of the marijuana package and confronted the woman about it. She said she was accepting the package for a friend. She then gave the police consent to open it and search it. The police found a couple of pounds of marijuana in the package. The woman then texted the defendant and told him the package was ready for him to retrieve. When he arrived, he was arrested for conspiracy to possess marijuana.

There were a few search and seizure issues involved in this case. The criminal defense attorney for the defendant filed a motion to suppress the marijuana evidence arguing that since the package did not belong to the woman, she did not have the legal authority to give the police consent to open it. Generally, people do not have the legal authority to give consent to search things that do not belong to them. In such cases, the police would need to get consent from the owner of the property or get a valid search warrant for the package.

However, that issue worked against the defendant as well. In order for a defendant to have the legal authority to challenge a search and seizure by police, the defendant must have what is referred to as standing- a sufficient interest in the item to be searched or the premises so that he has a reasonable expectation of privacy. In cases such as this involving mail, the defendant would have standing if the box was addressed to him or sent by him. People have a right to expect that the mail they send and receive is private. He might also have had standing if the package was sent to his residence. Even if the package is not addressed to a person who lives at a residence, the occupant of the residence still might have a right to privacy in items sent to his home. In this case, the package was not sent by the defendant, addressed to the defendant or sent to his residence. For those reasons, he did not have a reasonable expectation of privacy in the package. Therefore, even if the search of the box and the seizure of the marijuana were illegal, the defendant did not have the legal right to make a challenge. The marijuana evidence could then be used against the defendant in court.

January 13, 2016

Can the Police in Florida Search My Garbage and Other Items I Throw Away?

In Florida, the police are limited in what and when they can search items that belong to you. Obvious examples include your house, your vehicle and your person. The police are not permitted to search any of those things unless they have a search warrant, they have consent from someone authorized to give consent to search or in other limited circumstances. A criminal defense lawyer can file a motion to suppress evidence that is obtained as a result of an illegal search in a criminal case and get it thrown out of court.

But what if the police want to search something that used to belong to you but has been abandoned or thrown away? Especially in drug cases, the police will often search a person's trash without consent or a search warrant. The police will often look for evidence of drug activity like drug packaging materials or materials used to make drugs like in Methamphetamine cases.

In a recent criminal case near Jacksonville, Florida, the police received a call that the suspect placed a suspicious box in a trash can outside of his home. The police arrived and found the box in the trash can, which was in the street a couple hundred feet from the home. The police asked people in the area, and no one claimed ownership of the box. The police took the box to their police station and x-rayed it. They saw that it had a gun inside. When they opened the box, they found the gun and cocaine. The suspect who was identified as having placed the box in the trashcan was arrested for possession of cocaine and possession of a firearm by a convicted felon.

The suspect's criminal defense lawyer filed a motion to suppress claiming the police did not have a right to seize the box and later search it without a search warrant or consent from the owner of the box. However, the court disagreed. The court determined that the suspect abandoned his reasonable expectation of privacy in the property when he threw it in the trashcan. A person does not have a reasonable expectation of privacy in trash left on the street. At that point, the items in the trash are readily available to the public.

This case would have been different if the suspect put the box in a trashcan on his property or in his home. Police cannot go onto someone's property and search without a search warrant or consent. Or, if the suspect put the box in a trashcan on the street to temporarily hide it or keep it safe, stayed near the box and claimed ownership of it, that might dictate a different result. However, if a person puts an item in a trashcan and it is off of the person's property, a judge could easily consider that abandoned property in which case a police officer would be able to seize it and search it.

January 7, 2016

When Can a Judge Hold a Lawyer in Contempt and Place Him/Her in Custody in Florida?

It does not happen often, and I have only seen one case of a Jacksonville criminal defense lawyer being held in contempt, but a judge does have a right to hold a lawyer in contempt and send him/her to jail for a period of time for certain conduct in Florida. Of course, this does not just apply to criminal defense attorneys; it can apply to any lawyer that has to appear before a judge in any case.

There are two types of contempt proceedings: direct contempt and indirect contempt. Direct contempt involves improper conduct by a lawyer that is done in the presence of the judge so that the judge sees or hears it. An obvious example would be if the judge orders the lawyer to do something in court and the lawyer refuses to do it in court. Disruptive behavior in court can also be the basis for direct contempt. The other kind of contempt is indirect contempt. That involves the violation of a court order outside of the presence of the judge. For instance, if the judge orders the attorney to file a pleading and the lawyer intentionally fails to do so, that could be indirect contempt. A lawyer can go to jail for a contempt violation.

In a recent case near Jacksonville, Florida, a criminal defense lawyer was found in direct contempt and ordered to go to jail for a period of time. However, the judge abused his power over the criminal defense attorney. Apparently, the criminal defense lawyer thought she was finished for the day and had a couple of drinks at lunch. As it turned out, she had a plea hearing later that day. She went to the plea hearing, and someone told the judge that the criminal defense attorney smelled of alcohol. The judge ordered her to submit to a breathalyzer, and she blew a 0.085, which is over the legal limit for a DUI in Florida. The judge ordered her to be placed in jail until she blew under a 0.08 on the breathalyzer. Ultimately, a direct contempt hearing was scheduled, and the judge found her in contempt for appearing in court while impaired from alcohol and sentenced her to six months on probation.

The criminal defense lawyer appealed the contempt ruling and won. First, the judge cannot find a lawyer in direct contempt for conduct that occurred outside his/her presence. In this case, the drinking occurred outside of the courtroom. If the criminal defense attorney showed up drunk and started doing inappropriate things in court as a result, that could be the basis of a direct contempt ruling. However, the only evidence that she had been drinking was the odor of alcohol. Also, the judge did not have the authority to force her to submit to a breathalyzer test. Under Florida law, a person has to be under arrest before the state, or perhaps a judge, can force her to take a breathalyzer test.

Finally, the judge did not have authority to put the criminal defense attorney in jail initially. Since direct contempt proceedings had not officially started, there was no legal basis to put her in jail at that time. Only after a legitimate direct contempt hearing with notice and an opportunity to present and question witnesses can a judge put a lawyer in jail for contempt.

December 25, 2015

To Use the Stand Your Ground Law in Florida, the Force Used Must Be Reasonable

In Florida, a defendant charged with a crime of violence may be allowed to use the law commonly referred to as the Stand Your Ground Law to avoid prosecution for an alleged crime. The immunity aspect of this law is critical as it works differently than a normal defense. Essentially, if the criminal defense lawyer believes the Stand Your Ground Law applies, he/she can file a motion to have the case dismissed. A hearing is held, and the state has to present evidence establishing the defendant's use of force was not reasonable under the law. The defense can present evidence showing the defendant's use of force was reasonable. At the end of the hearing, if the judge sides with the defendant, the charge is dismissed. If the judge sides with the state, the case moves forward, but the defendant can still use a self-defense strategy at trial, and the question of guilt will be decided by the jury.

A person can successfully use the Stand Your Ground Law in Florida if he/she uses force that is reasonably necessary to prevent imminent death or bodily harm or prevent a forcible felony. In plain terms, if someone is about to cause you serious harm, you can strike that person first. But, there are limits. The harm by the other person has to be imminent (not some future threat), and it has to be a threat of serious harm. Additionally, the defendant cannot be the one who instigates the violence.

Going back to the reasonable requirement, a mild threat of violence is not sufficient to invoke the Stand Your Ground Law. For instance, if someone is threatening you with a gun, knife, baseball bat or other weapon that can clearly cause death or serious injury, you would likely be justified in using deadly force against that person to prevent being victimized first. However, if the person is approaching you with something that is not a deadly weapon, such as his hands or a stick, that would not likely be a legitimate reason to use deadly force. In the latter situation, if you use deadly force against the person, there is a good chance a Stand Your Ground motion would fail, and you would be facing serious felony charges.

And then there are a lot of examples in between. There is no black and white rule that dictates when you can use deadly force under the Stand Your Ground Law in Florida. It will always depend on the circumstances, and if the defendant pursues that strategy, the decision rests with the presiding judge.

December 22, 2015

Does the Legalization of Marijuana Increase Marijuana Use Among Teens?

In a word, no. The University of Michigan conducts an annual survey regarding drug use among teenagers. The special interests against marijuana legalization, i.e. pharmaceutical companies that want people using their processed drugs rather than the naturally growing marijuana plant, along with the politicians to whom those special interests pay a lot of money, would have us believe that if we legalize marijuana, teenagers and everyone else will be smoking marijuana for breakfast, lunch and dinner. However, this survey (and other studies) show us that is not the case. The survey indicated that there was no significant increase in marijuana use in the states where it is now legal. In fact, after rising for several years, marijuana use has remained fairly steady since 2010, according to the annual surveys.

As most people know, marijuana is now legal in Colorado, Oregon, Alaska, Washington and Washington, DC. Marijuana use among teenagers stabilized before marijuana legalization and has remained stable since. Interestingly, the percentage of people who view marijuana as a serious health risk has declined dramatically. While it is good to see a rational view of marijuana, it still has not increased the number of users.

One other predictable and favorable consequence of marijuana legalization: teen use of actually harmful substances like alcohol, cigarettes, ecstasy and synthetic marijuana is down.

If these numbers hold, one more argument against marijuana will hopefully disappear. Politicians who are puppets of the pharmaceutical and private prison industries will not be able to scare people into thinking all of their kids will become chronic marijuana users the day legalization takes effect, if people are interested in reality. However, the arguments against keeping marijuana illegal, such as the waste of money and resources and the harm to the community involved in making convicted criminals out of marijuana users, will remain.

A link to the University of Michigan survey can be found here: http://monitoringthefuture.org/pressreleases/15drugpr_complete.pdf

December 14, 2015

A Property Owner in Florida May Not Have a Right to Privacy in Leased Premises

In Florida, an owner of property has strong constitutional privacy rights in his/her property. This means that, with few exceptions, the police cannot enter to search that property with consent from the homeowner or a valid search warrant. If the police knock on a property owner's door and request to search the property, the owner has every right to refuse.

This right to privacy generally does not change when the property owner takes in a roommate or tenant. It generally does not change when the owner leases the property entirely to someone. However, it depends on the circumstances. The general idea is that if the law recognizes that the owner had a reasonable expectation of privacy in the property, even if it is leased to someone else, the owner maintains his/her privacy rights in that property with respect to the state. This means the owner can refuse entry into the property or challenge a search of that property by police in court.

Two examples may illustrate the difference. A property owner leases property to a tenant. The property owner keeps a key and goes inside the residence to check on it, make repairs and collects rent. The tenant lives at the residence, but the property owner maintains the right to go onto the property and go into the residence within reason. In this case, the property owner would exercise sufficient control over the property to maintain his/her privacy rights.

Alternatively, if the owner keeps a key and retains the right to go onto the property and into the residence but never does for any reason out of respect for the tenant's privacy, that owner may lose his/her privacy rights to that property. The owner needs to establish some specific factors regarding the landlord tenant relationship that makes it clear the property owner maintains a reasonable expectation of his/her privacy in the property.

If the owner does not have sufficient privacy rights in that property and the police search it illegally and find incriminating evidence, the property owner would not be able to challenge the illegal search in court.

December 11, 2015

The Inevitable Discovery Rule in Florida

There is a search and seizure rule in Florida that many people are not aware of that can be quite onerous, depending on how it is applied. It is called the inevitable discovery rule. To understand the rule, it is important to first understand your rights. The Constitution guarantees a person the right to privacy in one's home, vehicle and other property. This means the police cannot search a person's property without consent to search, a valid search warrant or some other narrow exception. If the police do search a person's property without authorization, any incriminating evidence can be thrown out of court with a motion to suppress.

However, the inevitable discovery rule gives the state an avenue to save their case even when the search is illegal. Basically, it says that even if the police conduct an illegal search and find incriminating evidence like illegal drugs, the state can still use the evidence against the defendant if the police would have discovered the evidence anyway by some other legal means. This rule has been applied to save a lot of criminal cases when the search was illegal.

However, there are limitations to the inevitable discovery rule in Florida. For instance, the rule only applies if there is a legitimate investigation taking place when the illegal search is conducted. For instance, in a case near Jacksonville, Florida, a guest in the defendant's home saw that he was growing marijuana plants in the home and called the police. Several police officers came to the defendant's home wearing masks with guns drawn and obtained consent to search the house. They found the marijuana plants inside and arrested the defendant for cultivation of marijuana.

The criminal defense lawyer filed a motion to suppress the evidence of the marijuana plants arguing that the police obtained the consent by intimidation and had no other legal basis to enter the home. The judge agreed that the consent was obtained by force, but still allowed the evidence of the marijuana plants based on the inevitable discovery rule. The judge ruled that the police could have obtained a search warrant for the house if consent to search was not given and discovered the marijuana plants that way. So, it was inevitable that they would have been able to enter the house and find the marijuana plants.

The obvious practical problem is that the rule excluding evidence in court when police do not follow the rules and conduct illegal searches was designed to deter the police from conducting illegal searches. If the judge finds a search to be illegal but lets the evidence in anyway, it does not do much to deter illegal police conduct nor protect a person's constitutional right to privacy.

Fortunately, Florida courts recognize a limitation to the inevitable discovery rule. In order for it to apply, an investigation has to be underway at the time of the illegal search that would have resulted in a valid search of the property. In this case, the police had no idea about the marijuana plants before the call. Additionally, they made no attempt to obtain a search warrant before they obtained the flawed consent and illegally searched the home. Since there was no investigation underway beforehand and no attempt to start one by applying for a search warrant, the inevitable discovery rule did not apply. The evidence of the marijuana plants was thrown out, and the marijuana charge was dismissed.

December 8, 2015

Vehicular Homicide in Florida Can be Committed with Reckless Driving Irrespective of Alcohol or Drugs

In Florida, vehicular homicide is a very serious felony offense that normally results in a prison sentence if the state can prove its case. Most of these cases deal with someone who is driving while impaired from alcohol and/or drugs and causes a traffic crash that results in the death of another person. If the state can prove that the driver was impaired so that his/her normal faculties were compromised, such as sight, judgment, coordination, and the driver causes a crash that results in a death, a vehicular homicide charge will likely follow.

There are serious traffic crashes that occur every day in Florida. Most of them are the result of one or more people driving poorly and violating some traffic law causing a crash. People speed, change lanes without looking, run red lights and commit other traffic infractions that result in serious crashes. It is always a judgment call, but if the person who causes the crash commits a routine traffic infraction, criminal charges are not likely. For instance, regular speeding, running a red light, improper lane change are generally not the kinds of things that result in criminal charges after a serious crash. Those are generally considered negligence cases that result in traffic citations and civil lawsuits.

However, even if no alcohol or drugs were involved, if the driving could be considered reckless, criminal charges can be brought. Recklessness has a legal definition, but it is a matter of interpretation. Basically, it is a judgment call, and it depends on the circumstances, although the more serious the crash and the more serious the injuries, the lower the bar. Also, the more traffic laws that are violated, the more likely a police officer or prosecutor (and ultimately a judge or jury) will consider the driving to be reckless. Simply running a red light will rarely be recklessness that is enough for a criminal case. However, running a red light plus driving 30 miles per hour over the speed limit while texting on a cell phone could certainly be considered reckless driving if it results in a serious accident.

Another example occurred in a recent vehicular homicide case near Jacksonville, Florida. In that case, the defendant was driving on a rural two lane road. There were two cars in front of him driving slower than the speed limit. He decided to pass both cars. However, after passing the second car, he stayed in the oncoming lane for approximately half a mile (in case there were any other cars he would want to pass) and caused a head on collision that killed the other driver. He was charged with vehicular homicide based on the reckless driving. His criminal defense lawyer filed a motion to dismiss arguing that the defendant's driving could not be considered reckless. However, the judge disagreed and allowed the criminal case to go forward. The judge determined that because it was a calculated decision to remain in the wrong lane (rather than a mistake) and doing so for so long created a very dangerous situation, a jury could consider it reckless driving.

December 4, 2015

In Florida, You Have a Right to Privacy in Your Home, But Not Necessarily Your Computer

In Florida, there are fairly strict rules that address when police can search your residence, your vehicle, yourself and your belongings. Essentially, if you have a reasonable expectation that the thing to be searched is private, then the police are limited in when and how they can search it. Certainly, this applies to your home, yourself and your vehicle. However, it does not apply to everything you own and in some cases, you lose your expectation of privacy when you use a belonging in a certain way.

For instance, if you have a computer, whether it's a regular home computer or a laptop you carry with you or any mobile device that stores data and acts like a traditional computer, the police generally cannot take it from you and search it without a search warrant or consent from you. They also normally cannot use a program to search the contents of your computer or mobile device. However, if you use your computer in certain ways, the police can take steps to view the data on your computer or mobile device.

If you are on your computer and sharing files on a peer to peer network with other people, such as Gnutella, you open yourself up to allowing the state to see what you are doing. Since you are publicly sharing your information with others, you no longer have a reasonable expectation of privacy in those items and on that network. State and federal law enforcement agencies have catalogued certain files that are associated with criminal activity, such as child pornography, and when they see these items shared and/or downloaded, law enforcement can obtain the IP address and then subpoena the internet service provider to find an actual address. A search warrant and seizure of all computers and storage devices in the home will likely follow.

As long as the police search is limited to information that is made publicly available to others, this search of computer files and networks is legal. Therefore, if a person, in the privacy of his/her home, decides to get on a network and publicly share files, that person is opening him/herself up to monitoring by police.