October 5, 2015

EL Faro Ship That Departed From Jacksonville Florida Still Missing

As people in Jacksonville, Florida and along the east coast know, there was a lot of discussion about Hurricane Joaquin last week and the various paths it might take. Some meteorologists had Hurricane Joaquin partially contacting the east coast of Florida while others predicted that it would pass well east of Florida and cause a tremendous amount of rainfall in the South Carolina area. In any case, just about every meteorologist expected Hurricane Joaquin to move north as it past Florida to the east, which is what it did. The only question was how close it would get to the Florida coast.

While Jacksonville was not victimized by Hurricane Joaquin, it did apparently cause a serious tragedy to a ship and crew that left Jacksonville for Puerto Rico on Tuesday of last week. The ship, which carried a crew of 33 people and almost 700 containers, was lost at sea on Thursday, when Hurricane Joaquin was to the east of Florida. Officials lost contact with personnel on El Faro when it was near the Bahamas, on the way to Puerto Rico. It was estimated that El Faro would have been traveling through 20 to 30 foot waves as it made its way to Puerto Rico during the hurricane. As of the date of this post, the ship has not been found although some debris from the ship has been recovered as part of the search and rescue mission.

The ship is owned by TOTE Maritime, which indicated that most of the people on El Faro are from the United States, while a few of them are from Poland. Many of the Americans on El Faro have some connection to Jacksonville, the city from which El Faro departed.

An obvious question is why a container ship would be traveling when it was well publicized that a hurricane, or potentially a tropical storm, was in the area. Hurricane Joaquin was a very popular subject in the media for almost two weeks, certainly during the week El Faro departed, and its path was fairly well predicted. Undoubtedly, El Faro's owner will contend that the ship and crew were equipped to handle Joaquin. However, since that does not appear to be the case and there is the potential for significant loss of life and property, the company will likely come under serious scrutiny as to why the decision was made to send the ship under these circumstances. The potential liability for that decision could be massive.

September 18, 2015

Marijuana Case in Florida Thrown Out When Police Don't Make Effort to Preserve Evidence

As most people with a basic understanding of the criminal justice system understand, the state always has the burden of proof in a criminal case. That means the state is obligated to prove, with evidence, that the defendant committed the crime with which he/she is charged. A person is always considered innocent until the state meets that burden. Of course, if the state never produces sufficient, convincing evidence to prove guilt beyond a reasonable doubt, the defendant remains innocent. Perhaps it is human nature for people to assume someone is guilty based on rushed and poorly researched media articles or even just an arrest on serious charges, but that is not how the system is supposed to work. Evidence controls.

In a recent possession of marijuana case near Jacksonville, Florida, the state failed to preserve and produce evidence of the defendant's guilt, and the marijuana charge was thrown out. This revolved around an incident that took place while a local station was filming a reality show about police officers. The local station had an agreement that allowed them to ride with the police to film the show.

The police officers indicated they saw the defendant smoking a marijuana cigarette, detained him and found more marijuana in his picket. The suspect claimed he was just smoking a cigar with tobacco and argued that the video would support his claim. The criminal defense lawyer attempted to obtain the footage of the encounter from the TV station, but they refused to provide it unless the defendant signed a waiver allowing them to show the incident on TV. He refused, and the station ultimately destroyed the video.

The police never made an attempt to recover the video despite their relationship with the TV station.

The criminal defense lawyer filed a motion to dismiss since this evidence of the incident was destroyed. The court agreed finding that the police knew the video had material information on it, they made no attempt to obtain it, the defendant tried to get it and was denied through no fault of his own and the evidence was destroyed with potentially exculpatory evidence on it.

The court found that the defendant's due process rights were violated. The police had an obligation to attempt to preserve what may have been critical evidence that could have been exculpatory for the defendant. They failed to do so and the video was destroyed, which prevented the defendant from properly defending his case. It would have been different if the defendant was responsible for the destruction of the video, but he attempted to retrieve it, and it was up to the police to preserve it.

September 11, 2015

Police in Florida Can Only Arrest for Resisting Arrest if There is a Legal Basis for the Initial Arrest

That is sort of a convoluted title, but the issue is when police can arrest someone for resisting an arrest. In Florida, resisting arrest can be a misdemeanor or felony charge in Florida. It is a misdemeanor if a person resists arrest without violence; it is a felony charge if a person resists arrest with violence. An old joke says that if the suspect wins the fight, it is going to be a felony, and if the police officer gets the upper hand, the suspect may have a shot at coming away with a misdemeanor. In any case, whether the charge is a felony or misdemeanor is based on the subjective determination of the police officer and then ultimately the prosecutor, unless it is clear that serious violence was used to resist arrest.

However, the state cannot just arrest and charge anyone who resists the commands or arrest of an officer. The police officer must have a legal basis to stop, investigate and/or arrest the suspect to begin with. If a person is minding his own business and the police officer tries to detain the person based on suspicion and the person resists, a police officer will often arrest the suspect for resisting arrest. However, the criminal defense lawyer may file a motion to dismiss alleging that the police officer had no legal basis to detain the suspect in the first place so the resisting arrest charge is not valid.

In a recent case near Jacksonville, Florida, the police responded to a domestic dispute. When they arrived, the saw the suspect heatedly arguing with his girlfriend outside of their home. When they arrived, the suspect took the girl inside the house. The police looked through the window and did not see any illegal activity or fighting. The girlfriend ultimately exited the house with no injuries. The police ordered the suspect out of the house, but he refused. They entered his house with the K-9, and an altercation resulted between the suspect and the police. The suspect was charged with resisting arrest with violence.

The charge was ultimately thrown out after an appeal by the criminal defense lawyer. The court found that the police were not within their legal rights to enter the house. They did not see any fighting, any injuries or any crime being committed. By the time they entered the house, the girlfriend was outside so there was no evidence that anyone in the house was in danger. At that point, without evidence of danger or an emergency, the police either needed a search warrant or consent to enter the home. Since they entered the home illegally, they had no right to arrest the suspect so he could not be properly charged with resisting arrest with or without violence.

July 24, 2015

Florida DMV Can Suspend Your Driver's License for Medical Reasons Based on Confidential Tip

One thing people in Florida do not always realize is that driving is considered a right, not a privilege. This does not mean that the DMV in Florida is going to withdraw drivers' licenses for no reason, but it does mean that when the DMV does revoke a person's driving privileges, that person may have much less recourse than in criminal cases where Constitutional rights are at issue.

For example, in DUI cases, the DMV will almost always suspend a person's driver's license based merely upon a DUI arrest. Of course, according to Constitutional law, a person is innocent until proven guilty and an arrest, by itself, is not proof of guilt. However, since driving is a privilege and the DMV operates under its own set of rules, they can suspend a driver's license immediately upon a DUI arrest. The driver will have an opportunity to challenge the license suspension, but that process does not have anywhere near the safeguards and thoroughness that comes with a criminal case.

The DMV can also suspend your driver's license if there is an indication that you are not medically fit to drive. All it takes to start this process is a report from someone that you are not medically fit to drive. This can be a doctor or anyone with any knowledge of your ability to drive. If someone makes such a report to the DMV, the DMV might open a file and send you a letter telling you to go see a doctor and get examined to see if the doctor thinks you should be driving. The doctor would then prepare a report that goes to the DMV. If the doctor concludes that you are not fit to drive, the DMV will likely suspend your license until you can prove, with the assistance of a doctor, that you are competent to drive.

Additionally, if the DMV sends you a letter indicating that they have reason to believe you are not fit to drive and requesting a report from a doctor and you do not comply, the DMV can suspend your driver's license until you do comply with the DMV's instructions and get an evaluation and report from a qualified doctor. In the meantime, you are not allowed to discover who made the report to the DMV or what the person said to the DMV about your medical condition and your driving. There are probably a few reasons for the confidentiality of this process, but I assume one of them is to encourage people to report family members without that family member knowing.

July 16, 2015

Examples of When the State Cannot Prove Constructive Possession in Florida

In Florida, there are a lot of drug cases and gun cases that involve the concept of constructive possession. Actual possession is when the police find a gun or drugs on a person i.e. in his pocket, in his hand, in his waistband, sees him throw the drugs on the ground. Constructive possession is a lot more vague. The state can convict a person of a possession of drugs or gun charge based on constructive possession. However, it can be more difficult.

In layman's terms, constructive possession means the illegal item(s) is in a place where it is sufficiently clear the suspect knew it was there and had some control over it. In other words, the state needs to present sufficient evidence for a jury to believe the defendant knew about the item(s) and either put it there or had the ability to remove it. The state does not, however, have to prove the defendant actually did place the item there or intended to take it away at some point.

Again, it is vague, but some examples might help clarify it. Of course, ultimately, it is up to a judge or jury to decide.

If you go to a big party and you see marijuana on the table a few feet away but never touch it or do anything with it and the police come in, you are not in constructive possession of those drugs. The state could probably prove you knew it was there, but they could not prove you have any control over it, just like most other people at the party. it is not illegal to be in the presence of illegal drugs, although it is not a good idea either as anything can happen in these constructive possession cases.

If you live in an apartment with two roommates and the police search it and find a bag of cocaine in a clothes drawer, you might have a problem if it can be proven that it is your room and your drawer of clothes. For instance, the police might present evidence that your wallet and personal documents were in the room and the shirts in the drawer appeared to be your size and there are other indications that the room belongs to you. Of course, you can argue that a roommate or someone else put the drugs there without your knowledge, but nothing says a judge or jury has to believe that. In this case, you might win, but there would probably be enough evidence to establish knowledge and the ability to control the cocaine.

In a recent case near Jacksonville, Florida, the police searched some property including a vehicle that was on the premises. Several people were also on the premises at the time. Upon searching the vehicle, the police found a gun in the closed center console. They also found a recent rental car agreement for the car in the defendant's name right next to the gun in the center console. Since the defendant was a convicted felon, he was arrested for possession of a firearm by a convicted felon based on this evidence.

The defendant was actually convicted at trial, but fortunately for him, his criminal defense lawyer appealed, and the conviction was reversed. The court found that the rental car agreement next to the gun was not sufficient to prove possession. The rental car agreement was proof that the defendant rented the car, but it was not clear when the agreement was placed in the center console and when the gun was placed there. It was certainly possible that one of the other people at the property, or anyone else, drove the car or was in the car at some point and put the gun in the center console after the rental agreement was placed there. This case might have ended differently if the defendant was in the car at the time the police found the gun, particularly if the center console was open, but the fact that the defendant rented the vehicle did not mean he knew everything that was in the car days later, especially if the illegal item was not out in the open.

July 13, 2015

When Can Oral Communications Be Secretly Recorded in Florida?

With cell phones that have the capability to record audio and video, people record other people's communications all of the time. However, that may not be legal in Florida. There is a statute that addresses this issue, but its interpretation is not clear. The Florida statute basically says it is illegal to record another person's conversation without that other person's knowledge and consent. This means you cannot call someone on the phone and record the conversation without telling the other person you are recording the conversation and getting his/her agreement. There are exceptions to the rule, and it is not exactly clear how the exceptions apply.

Of course, as indicated, knowledge and consent of the other party makes recording legal. Also, there is a legal exception for law enforcement officers to intercept an oral communication when the officer is a party to the conversation and for law enforcement to record a conversation involving other people if one of the parties agrees and it is for the purpose of obtaining evidence for a criminal case.

Based on this, it is clear that the police are permitted to record a conversation between Person A and Person B if Person A knows about the recording and agrees to it and the purpose is to discover evidence for a criminal case. This is what is commonly known as a controlled call. The police often use this technique to have a trusted friend or family member who is working with the police call a suspect and try to get the suspect to make incriminating statements while they record the call. As long as the suspect's friend agrees to the recording, it is legal even though the suspect obviously will not be told of the recording or the police involvement.

The question is whether the requirement that the recording be for the purpose of obtaining evidence in a criminal case also applies when the conversation includes the police officer rather than just two or more lay people. The statute is not clear. A recent Florida appellate court case discussed this issue. The appellate court determined that the criminal evidence qualifier does apply to recordings that involve either private citizens together or police and private citizens. In other words, the police must be able to establish a purpose of uncovering evidence in a criminal case if they are going to secretly record a conversation only involving lay people or a conversation between a suspect and a police officer.

One other factor that could alter this conclusion. The prohibition of recording oral communications only applies when the suspect being recorded has a reasonable expectation of privacy. Phone calls would almost certainly qualify. However, discussions that take place in public or with several other people around may not be protected from recording by the Florida law because they are not deemed to be private.

July 10, 2015

State Cannot Use Breathalyzer Test Results Against Defendant in DUI Case Where Independent Blood Test Was Requested

In Florida, when a police officer makes a traffic stop and claims he/she observes evidence of impairment from alcohol, that officer will initiate a DUI investigation. This usually starts with questions about where the driver has been, how much the driver has had to drink and other questions about the driver and his/her activities. The driver, of course, is free to request a lawyer and refuse to answer those questions. Next, the police officer will request that the driver submit to field sobriety tests. Again, the driver is free to refuse to submit to those tests. The driver should probably refuse to submit to those tests if he/she has any health/physical issues and/or the police officer does not have a video camera in his/her vehicle that accurately, objectively and completely records the driver's performance of those tests. Sometimes, even when there is a video camera, it is difficult to observe exactly how the driver performs on some or all of the field sobriety tests. In that case, the driver is at the mercy of the police officer's subjective opinions as to his/her success. This can be due to the placement of the car in relation to the test location, the lighting and the obscure nature of the tests themselves.

After a DUI arrest, the police officer will ask the driver to submit to a breathalyzer test which tests the driver's blood alcohol level. The driver can refuse this test, but it is important to note that when a person in Florida agrees to accept a driver's license, he/she impliedly consents to submit to a breathalyzer test after a valid DUI arrest. If the driver decides to refuse the breathalyzer test, that driver is subjected to a longer driver's license suspension and could have the refusal used against him/her if the DUI case goes to trial.

However, some people do not necessarily trust the government with their lives and well-being. They might agree to submit to a breathalyzer test, but request an independent blood test that is not provided by the police. In this situation, the driver should politely and clearly request an independent blood test. Under Florida law, a person arrested for DUI whose breath is tested has a right to request an independent blood test. Of course, most people do not drive around with a lab technician who is prepared to test blood for alcohol. Likewise, the police are not likely to let the suspect who is under arrest leave to get a blood alcohol test and return later.

Therefore, the Florida courts have held that if a person whose breath has been tested requests an independent blood test, the police have to take reasonable steps to allow that independent test to occur. This would include a phone call and transportation to a place that could conduct such a test. If the police refuse the request for an independent blood test or do not take reasonable steps to assist the suspect in obtaining the independent blood alcohol test, the state's breath alcohol tests would likely be thrown out and unavailable to be used as evidence against the driver in court.

June 15, 2015

Defendant in Florida May Not Be Charged With Drug Possession if Drugs Found During Overdose

There is a law in Florida that is not well known that protects people from drug charges if police find drugs while assisting someone during a medical emergency due to a drug overdose. A Florida statute provides immunity from prosecution for a person who is experiencing a drug overdose and is in need of medical attention if the police find evidence of the drug possession crime as a result of the overdose and medical attention.

For instance, suppose a person uses a drug like cocaine or heroin and becomes seriously ill so that someone calls 911 for medical attention and the police arrive. If, in the process of assisting the person, the police find cocaine or heroin or any other evidence of illegal drugs, this law protects the person from arrest for the drug charge. If the police officer, who may not be familiar with this law in Florida, does decide to arrest the person, the criminal defense lawyer can file a motion to dismiss the drug charge based on this immunity. The police can take a person into protective custody who needs emergency medical attention due to drug abuse. However, this cannot lead to criminal prosecution if drugs were found during the medical treatment.

This protection does not help everyone who is feeling the effects of drug abuse. If a person is clearly impaired from drugs and someone calls 911 for an ambulance, that does not automatically trigger the immunity from prosecution. Ultimately, it would be up to a judge to decide, but the criminal defense lawyer would have to establish that the defendant was more than just high or intoxicated. The criminal defense attorney would have to establish that the defendant was experiencing a serious medical emergency when the evidence of the drugs was found. Presumably, this evidence would be presented by way of medical records and witness testimony, if applicable.

June 3, 2015

Police in Florida Generally Need a Search Warrant to Obtain Real Time Cell Phone Information

Most people are aware that cell phones have GPS data that allows a cell phone provider to track and determine the location of the cell phone. This can be valuable information to police officers who are looking for a cell phone, or a suspect, at any given time. Do police officers need to get a search warrant to be permitted to obtain this GPS information from the cell phone provider?

In a recent case near Jacksonville, Florida, a drug deal went bad, and a shooting occurred. The victim contacted police and told them the suspect fled with a cell phone. The police officers contacted the provider for the cell phone and filled out a form claiming it was an emergency and they needed the real time location data for the cell phone. The police did not get a search warrant for the cell phone provider; they merely filled out the form requesting the information. The cell phone provider complied, and the police found the suspect within a couple of hours. When the police found the suspect, they also found the gun used in the shooting, and the suspect was arrested for murder, drug crimes and gun crimes.

The criminal defense lawyer filed a motion to suppress the seizure of the gun arguing that the police illegally searched the cell phone information which led to the suspect which led to the gun. The court agreed. A person does have a reasonable expectation of privacy in his/her real time cell phone information. As a result, the police need probable cause and generally need a search warrant to obtain this information. Because they did not get a search warrant here and relied on a form that is not approved and signed by a judge, the search was considered illegal.

There is a fairly common exception to a situation like this. If the police can establish exigent circumstances, i.e. there is an emergency and they need the information quickly, they could bypass the search warrant requirement. For instance, in this case, the prosecutor argued that the suspect was likely armed and dangerous so they needed to find him as quickly as possible. The court agreed with this argument, but in order to bypass the search warrant requirement, the state also would need to establish that they did not have time to get a search warrant. Since the state failed to establish how long it would take to get a search warrant and that extra time created or exacerbated an emergency situation, the state did not meet its burden under the exigent circumstances exception.

May 30, 2015

Police in Florida Cannot Enter Secured Property for Investigation Based on Anonymous Drug Tip

The right to privacy in one's home and on one's property is one of the strongest rights in the Constitution. The police are not allowed to come into one's home and search or ask questions without consent from the resident or a valid search warrant. The fact that the police in Florida have an anonymous tip that a resident is growing marijuana plants or engaged in any other illegal activity does not change that.

However, if the police do get an anonymous tip of illegal activity and it is not sufficient for a search warrant, the police can normally walk up to the suspect's front door, knock and see if the occupant(s) will answer questions or let the police in to investigate. In this way, the police are entitled to the same access as any of member of the public who can walk up to a person's door and knock.

One exception is if the front door is not easily accessible. For instance, if there is a fence surrounding the property or the home is otherwise enclosed or secluded in such a way that it is apparent that the occupant(s) does not want people to be able to freely walk up to the door, the police cannot go through a fence or intrude onto the property without consent or a search warrant.

In a recent case near Jacksonville, Florida, the police received an anonymous tip that the homeowner was growing marijuana plants inside his house. The house was surrounded by a chain link fence and a locked gate. The property owner also had a "no trespass" sign on the gate. This was clearly a homeowner who did not want people coming onto his property without permission. However, the police went through the gate, knocked on the front door and ultimately found marijuana plants on the property. The defendant was charged with manufacturing marijuana.

The criminal defense lawyer filed a motion to suppress arguing that the search was illegal as the police had no legal right to walk upon the property. The court agreed. The police can walk up to someone's door to knock and ask questions if there is free and easy access to the door. Of course, the occupant is entitled to not answer the door, refuse to answer questions or refuse to let the police come inside. However, if it is apparent that the homeowner has blocked access to the property and reasonably expects that the property be kept private from visitors, the police would not be permitted to enter the property to search, investigate or even knock on the door to ask questions. If they do and find drugs or other evidence of criminal activity, that evidence is likely to be thrown out of court.

May 27, 2015

You Can Be Pulled Over If You Have a Trailer Hitch or Anything Else Obstructing Your License Plate in Florida

A lot of serious criminal arrests are the result of simple, seemingly harmless traffic stops. Many drug cases and gun cases originate from simple traffic violations that lead to traffic stops that lead to criminal investigations and searches and seizures. Of course, most DUI arrests are also the result of simple traffic stops.

In a case near Jacksonville, Florida, the defendant was driving a vehicle with a trailer hitch. A police officer driving 25 feet behind him noted that he could not read the defendant's complete license tag due to it being partially blocked by the trailer hitch. For that reason, the police officer pulled the defendant over. After some investigation and a search of his vehicle, the police officer arrested the defendant for possession of marijuana and possession of cocaine.

The criminal defense lawyer filed a motion to suppress the evidence of the marijuana and cocaine alleging that the police officer did not have a legal basis to stop the defendant based on a partially obscured tag caused by a trailer hitch. Florida law provides that all vehicles must be properly licensed and all of the letters and numbers on the license tag must be clear and free from any obscuring matter so they can be plainly visible and legible at least 100 feet from the vehicle. The criminal defense attorney pointed to a prior case which interpreted this law to mean that the license plate itself cannot have anything on it that would obscure the letters or numbers. Therefore, a trailer hitch, which is not actually on the license plate, would not violate this law. However, the court in this case, which has precedence over Jacksonville, Florida, held that the intent of the law is that the license tag must be clearly visible from at least 100 feet away. If something is blocking it, either on the actual license plate or external to the license plate, the law is being violated. As a result, the court found that the initial stop was valid due to a partially obscured license plate, whatever the reason for the obscurity may have been.

Based on this ruling, people need to be aware that if anything is obstructing a police officer's vision of any letters or numbers on a license plate, whether it is on the license plate, in front of the license plate or something being towed by the vehicle, a police officer has a legal right to make a traffic stop.

May 24, 2015

Necessaity Can be a Defense to Criminal Traffic Charges in Florida

In Florida, the defense of necessity may be available for a defendant charged with a variety of criminal charges. When using this defense, a defendant is basically saying that he/she did commit the crime, but did so because it was necessary due to some urgent circumstances. The necessity defense has a few conditions that must be met: 1) the defendant reasonably believed the criminal act was necessary to avoid imminent death or serious injury to him/herself or others, 2) the defendant did not intentionally put him/herself in the position that resulted in the need to take action, 3) the criminal act was the only adequate method to avoid the problem, 4) the harm to be avoided was more serious than the criminal conduct, and 5) the defendant ceased the criminal conduct as soon as the threat dissipated.

There are situations where a necessity defense would be a valid defense. If a person needed to drive while impaired or with a suspended license to get a person with a serious and emergent health problem to the hospital, that might qualify. However, this defense often fails with conditions one and three.

For example, in a recent case near Jacksonville, Florida, two guys went out to a bar. One of them got too drunk to drive, and the defendant had a suspended driver's license. The defendant decided to drive home. He was stopped by police and arrested for driving with a suspended license. His criminal defense attorney tried the necessity defense to defend the case. It failed. The problem with condition number one was that being drunk is not a threat that involves the risk of imminent death or serious bodily injury. If the friend was so drunk that he was getting seriously ill, this condition might have been satisfied. However, just being too drunk to drive did not qualify. The problem with condition number three was that there were other reasonable and adequate alternatives, such as walking, calling a friend for a ride or calling a taxi. Because this defendant's necessity defense did not come close to satisfying those two conditions, the defendant was convicted of driving with a suspended license. Likewise, if the drunk guy drove because the defendant's license was suspended and he got arrested for DUI, his necessity defense would have failed for similar reasons.