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.

May 21, 2015

Collection of DNA May Toll Statute of Limitations in Lewd and Lascivious Battery Cases

In Florida, the state must commence prosecution of a suspect within a certain period of time from the date a crime is committed or reported. That period of time is referred to as the statute of limitations. It provides that the state must prosecute a suspect within a certain period of time, and if they do not, the state can never prosecute the suspect for that crime. The idea is that a defendant has a constitutional right to properly defend him/herself, and if the state unreasonably delays in bringing its case against the defendant, it could impair the defendant's ability to defend the case. Witnesses forget, they move away, they pass away and evidence can be difficult or impossible to obtain as time passes.

There are various factors that can toll a statute of limitations. This means that the time period can be stalled, or the clock can be stopped, if one of these factors exist. For instance, if the defendant leaves the state of Florida and the police cannot find him/her despite their due diligence, this could toll the statute of limitations. Additionally, in some cases, like fraud cases, the victim is not aware that he/she has been defrauded until much later so the statute of limitations may not start until the victim knows or should have known that he/she has been a victim of fraud. In sex cases, collecting DNA can toll the statute of limitations until it can be tested.

In a recent case near Jacksonville, Florida, a fifteen year old girl gave birth, and a thirty year old guy was listed as the father. Since it is illegal for a 30 year old guy to have sex with a 15 year old girl, the police started a lewd and lascivious battery investigation. The father/suspect fled, and he could not be located to be interviewed or arrested. As a result, the police moved the case to the inactive list. Every now and then, they would look at the case in an attempt to find the suspect. The statute of limitations on the lewd and lascivious battery case was three years. More than three years later, the police found the suspect and took a DNA sample from him. They also took a DNA sample of the child and found a match. The suspect was arrested.

The criminal defense lawyer filed a motion to dismiss the charge based on the passage of the statute of limitations. While the statute of limitations is three years, it can be tolled if the police tried to find the suspect and collected DNA during the original investigation to preserve it and make it available for testing later. The problem was that the state failed to do this. They obviously could not get the suspect's DNA early on because they could not find him. However, they could have, and should have, collected the child's DNA for later comparison during the initial investigation. There was no reason not to. Because they did not collect DNA for later testing when they found the suspect, the statute of limitations was not tolled. Because of this egregious mistake by the police, the statute of limitations ran, and the state could not prosecute the defendant. The case was dismissed.

May 10, 2015

Assumptions and Police Officer's Super Human Eyesight Are not Sufficient for a Search and Seizure in Florida

In Florida, the police are not allowed to stop a person for a drug or other criminal investigation without reasonable suspicion that the person is engaging, just engaged or is about to engage in criminal activity. This reasonable suspicion standard requires more than just assumptions. There must be some specific evidence that reasonably leads a police officer to believe there is criminal activity afoot.

In a recent case south of Jacksonville, Florida, the police officer was at a gas station in the evening as it was getting dark and observed the suspect enter into a hand to hand transaction with another person in the parking lot. The police officer was about 30 feet away, but he said he could see the suspect give the other person a rolled up baggie. The police officer assumed it was marijuana based on the neighborhood and the nature and short duration of the transaction. As a result, the police officer stopped the suspect, searched him and found marijuana in his pocket. He was arrested for possession of marijuana.

The criminal defense attorney filed a motion to suppress the marijuana evidence arguing that the police officer did not have a reasonable basis to stop the defendant. The judge agreed. While the police officer was correct that the transaction did involve marijuana, learning this after the fact cannot be a basis for a prior search. The police officer must be able to point to specific facts indicating criminal activity before he/she stops a suspect. In this case, the police officer was too far away to see or smell marijuana. He was just relying on assumptions based on limited information. Short, hand to hand transactions in questionable neighborhoods may mean drug deals, but they also might mean something else. That alone is not sufficient to permit a search and seizure. Because the police officer did not rely on sufficient facts indicating criminal activity, the stop was unlawful, and the resulting search was unlawful. As a result, the marijuana charge was thrown out.

May 7, 2015

People on Probation in Florida May Have Reduced Constitution Rights Regarding Searches and Seizures

Most people in Florida enjoy the Constitutional protections that prevent the police from searching a person's home, vehicle or other belongings without probable cause, a search warrant and/or consent. In other words, police cannot just go and enter a person's home or search something that belongs to a person without respecting certain Constitutional safeguards, which generally require a search warrant or an agreement from the owner of what is being searched.

However, people on probation in Florida do not necessarily get the full protection of these Constitutional provisions. When a defendant pleads guilty or no contest to a criminal charge or is found guilty after a trial, the judge will sentence the defendant. That sentence often includes probation, either by itself or after a term of incarceration. When a defendant goes on probation, there are certain conditions that must be followed. There may be specific conditions in certain cases, such as paying a certain amount for restitution in a fraud case, and general conditions that apply to most or all cases. One of the general conditions of probation that is often ordered in Florida is one that allows a probation officer to enter the probationer's home to search it for drugs, weapons or other indicia of criminal activity. While a probation officer or law enforcement officer would not normally be allowed to enter a person's home and look around without a search warrant or permission in advance, a person on probation does not have that same protection if a random search was included as a condition of probation. If the probation officer randomly searches a probationer's home and finds anything illegal, that probationer could face new charges and a violation of probation charge without being able to successfully challenge the search and get the evidence thrown out.

In a recent case near Jacksonville, Florida, a defendant was sentenced to probation after being convicted of a violent crime. A general condition of probation allowed the probation officer to enter his home any time to search it. These general conditions of probation are often not disclosed to the defendant in court during the sentencing hearing. A defendant may have to carefully read his/her sentencing paperwork to see that the condition exists. Many do not bother to do that.

In this case, the probation officer and a police officer showed up at the probationer's house very early in the morning without notice and came in for a search. They found a gun and drugs inside. As a result, the subject's probation was violated, and he faced new charges for the drugs and gun since he was a convicted felon. The defendant's criminal defense lawyer tried to challenge the random, unannounced search, but the courts allowed it since he was on probation, and it was a condition of his probation.

This does not mean that the police and/or a probation officer has free reign to search a probationer's home as often as, whenever and however they want. Any search must be reasonable in its scope and method. However, it is fairly clear that periodic, random searches without notice will be allowed in these situations where a person is on probation and such searches as allowed as a condition of that probation.

March 30, 2015

Florida Uses a Broad Interpretation of its Money Laundering Statute

In Florida, a person commits the crime of money laundering when he/she conceals the nature, source or location of proceeds of specified unlawful activity. Money laundering in Florida only applies to money or other property that comes from "specified unlawful activity", but that term is defined very broadly and certainly includes just about any form of theft. "Conceals" is given its ordinary definition and includes any action done to try and avoid disclosure or detection.

When most people think of money laundering cases, they think of some elaborate scheme where a suspect moves money around through different banks and countries or moves the money through a legitimate business to make it difficult for the police to discover where the money went and where it came from. However, much less movement is needed to meet the concealment element of a money laundering crime. In fact, we have seen a money laundering charge where a suspect has merely moved money from one account to another in the same name at the same bank.

In a recent case near Jacksonville, Florida, a church maintained four separate bank accounts, and donations were deposited into those accounts depending on the particular charitable intentions of the members. The pastor had exclusive control over the benevolent account which was supposed to be for donations benefiting needy people in the community. The other three accounts were for other, specific charitable purposes. Over a couple of years, the pastor transferred money from the other three accounts into the benevolent account and then used money from that account for personal expenses. The pastor was ultimately charged with theft for stealing money that was meant for charity and money laundering for moving money from the other accounts into the benevolent account which he controlled on his own.

The criminal defense lawyer defended the money laundering charges with two arguments. First, the criminal defense attorney argued the pastor did not commit money laundering because the money that went into the church's bank accounts did not come from "specified unlawful activity." In fact, the money came from donations which clearly are not unlawful sources. However, the court interpreted the money laundering statute very broadly and ruled that as soon as the money was transferred from one account to another, it became "proceeds from specified unlawful activity" because the money was being improperly moved from its intended account to a different account and different purpose.

The criminal defense lawyer also argued the pastor really made no attempt to conceal the money as the funds were merely moved from one account to another at the same bank, except for some money that was moved to a different bank, but that account was in the pastor's name. It made more sense that the pastor was moving the money to make it easier to access rather than to conceal the source of the funds. However, the court ruled that because the pastor moved the money to a different account, that was sufficient to satisfy the concealment element of money laundering.

The Florida money laundering statute was designed to address criminal schemes where people were making money from some illegal activity and needed to find ways to conceal, or launder, the cash that came from such illegal activity. Two obvious examples would be selling drugs or gambling. Those are businesses that produce a lot of cash, and criminals would need to figure out some way to process that cash and make it appear legitimate. Hence, the money laundering statute was enacted to punish that practice. This is not the kind of case the money laundering statute was intended to address. However, as is often the case, as government gets bigger and bigger, when they get a new law to use, they use it whenever they can, despite the intended purpose of the law.

March 22, 2015

Florida Stand Your Ground Law Cannot Be Used Against Police Officer Engaged in Official Duties

As many people are aware due to some recent high profile cases, Florida has the Stand Your Ground law which provides that the state cannot prosecute a person who used justifiable force under the circumstances. When a defendant properly defended himself with reasonable force under the circumstances, the Stand Your Ground law establishes an immunity for the defendant so that the state cannot move forward with its prosecution of the defendant.

However, the Florida Stand Your Ground law does not apply in certain situations. For instance, a defendant cannot attempt to use the Stand Your Ground immunity when the alleged victim is a police officer engaged in the performance of his/her official duties as long as the officer either identifies him/herself as a police officer or it is clear from the circumstances that the defendant knew he/she was an officer.

In a recent case near Jacksonville, Florida, a police officer was responding to a robbery call at night. The police officer was led to the defendant's residence and observed the defendant outside. The officer claimed to have identified himself, pulled out his gun and pointed the gun and his flashlight at the defendant. The defendant shot the police officer in response.

The defendant was arrested and charged with aggravated battery on a law enforcement officer. The criminal defense lawyer asserted the Florida Stand Your Ground immunity and claimed that he did not know the victim was a police officer and shot him to defend himself. The court did not allow the defendant to assert that claim. Since the court found that the victim was a police officer, he was engaged in his official duties by responding to a robbery call and he identified himself as a police officer, the Stand Your Ground immunity was unavailable to the defendant. If the police officer did not identify himself or was off duty or it was otherwise unclear he was a police officer, the defendant would be able to attempt a Stand Your Ground claim. However, in this case, the court found that the police officer met the conditions of the exception outlined above so Stand Your Ground could not apply.

The defendant was still able to use a self defense claim at trial. He could argue he did not know the victim was a police officer and thought someone in the dark was going to shoot or attack him so he fired first. The key difference is that a self defense claim like that would be decided by a jury. If the jury does not buy that defense, the defendant may very well get convicted of the crime. The Stand Your Ground claim is an immunity asserted with a motion to the judge. If the judge grants the motion, the case is over and never gets to an unpredictable jury.

March 19, 2015

Be Careful in Florida Driving Someone Else's Vehicle if That Person Might Have a Legal Problem

In Florida, a lot of criminal cases are initiated based on fairly routine traffic stops. What might start out as a speeding or red light violation can easily turn into a DUI, felony drug or driving with a suspended license arrest. Additionally, a lot of arrest warrants are served based on traffic stops.

Police officers have a lot of leeway to make traffic stops. If a police officer says a driver violated a traffic law, he/she will be able to pull that driver over, and any attempt to contest it will be a difficult credibility contest between the suspect and the police officer. A police officer in Florida can also use the information he/she obtains from the computer when running a license tag to make a traffic stop. For instance, police officers will often run tags on their computer to determine if the registered owner of the vehicle has a suspended license or outstanding arrest warrant. A police officer can stop a driver if the officer runs the tag to the vehicle in the computer and learns that the owner of the vehicle has a suspended license or outstanding warrant. This is so even though we all know a vehicle owner is not necessarily the current driver.

In a recent case near Jacksonville, Florida, a police officer ran a tag and learned that the owner of a vehicle had a suspended license. The officer conducted a traffic stop and asked for the driver's license. The driver was not the owner of the vehicle, but he also had his driving privileges suspended. He was arrested for driving with a suspended license.

The criminal defense lawyer filed a motion to suppress the evidence of the stop because the defendant was not the owner of the vehicle and was not the person the officer was looking for based on the information in his computer system. The court disagreed. A police officer is allowed to stop and detain a person if he/she has reasonable suspicion or probable cause to believe the person is committing a crime. The law in Florida provides that when a police officer learns that a vehicle owner may be committing a crime (i.e. driving with a suspended license) or may have committed a crime (i.e. has an outstanding warrant), this is sufficient to allow a traffic stop for further investigation. As long as the driver sufficiently matches the description of the owner, the police officer can make the traffic stop and investigate further.

Of course, this does not mean the police officer can pull anyone over based on incriminating information about the owner from the computer system. If the police officer runs a tag and learns that the Asian female owner has a suspended license or outstanding warrant, the officer cannot stop the vehicle or detain the driver if he/she can see that the driver is a white male.

However, police officers do have some leeway in making stops and investigating drivers when they are driving cars owned by someone with a warrant or a suspended license. Therefore, if you are borrowing someone's vehicle or drive a vehicle titled in another person's name, be aware that you may be subject to traffic stops for no apparent reason.

March 16, 2015

Odor of Alcohol and Beer Cans Found on Boat WEre Not Sufficient for Boating Under the Influence (BUI) Investigation

In Florida, most alcohol related criminal cases are DUI cases, however it is not uncommon for us to see boating under the influence, or BUI, cases as well. There are some similarities between DUI and BUI cases as well as certain differences. As to the similarities, it is illegal to drive a boat while impaired, and the police will try and get the boat driver to submit to field sobriety exercises and a breathalyzer test just as with a DUI. Additionally, the penalties for BUI and DUI cases are similar.

There are also some key differences. Some of the observations the law enforcement officers make trying to prove impairment are obviously different when a person is on a boat versus in a vehicle. Additionally, it is not illegal to drink alcohol on a boat, while it is illegal for any occupant to have an open container of alcohol in a vehicle on the road.

In a recent case near Jacksonville, Florida, a Fish and Wildlife Department officer observed the defendant violating the wake free zone with his boat. He asked the defendant to pull his boat over to the officer's boat. The defendant was able to maneuver his boat over to the officer's boat. The officer then conducted a safety inspection which required the defendant to retrieve certain items such as a life vest, boat registration and other items required to be on the boat. The defendant had to balance himself while obtaining these items. The officer then indicated that he noticed an odor of alcohol coming from the defendant and saw two empty beer cans in the boat. Based on these observations, the officer requested the defendant submit to field sobriety tests and the breathalyzer test. Once those were completed, the officer arrested him for BUI.

The criminal defense lawyer filed a motion to suppress the evidence of the field sobriety exams and the breathalyzer. The law, which applies to BUI and DUI cases equally, says that a law enforcement officer may not detain a suspect for investigation including field sobriety tests and a breathalyzer test without reasonable suspicion that the driver was committing a crime. In other words, the officer needed to have specific evidence that the driver was impaired from alcohol. In this case, the officer relied on the fact that the defendant was unsteady while retrieving items on the boat, smelled like alcohol and had two empty beer cans on the boat. However, the court found this evidence to be insufficient evidence of impairment.

If this was a DUI case, it might have been different. Police officers are always testifying that drivers are swaying and/or unsteady on their feet. On land, this can be a difficult factor for a defendant to refute. However, on a boat, while trying to find items for the officer, being unsteady is understandable without regard to impairment. Smelling like alcohol may be evidence that a person has had alcohol to drink, but it does not mean that person is impaired. It is not illegal to have a drink or two and drive. It is only illegal to drive while impaired. Finally, the court did not find that the evidence of the beer cans was sufficient to support illegal activity. It is not illegal to drink on a boat. Also, there was no evidence that the driver was the one who drank those beers, or if he did, when he drank them.

Ultimately, the state did not establish that the officer had sufficient and specific reasons to suspect the defendant was impaired and committing a BUI offense. As a result, the evidence of the field sobriety tests and the breathalyzer test was suppressed, and the BUI case was thrown out.

March 1, 2015

Florida Appellate Court Awards Attorneys Fees to Claimant After Money is Forfeited Without Evidence of Criminal Activity

As we have mentioned many times before on this website, we have seen many cases where a Florida law enforcement agency has taken money or other property from a person without any indication that the person or the property was involved in criminal activity. The Florida forfeiture laws allow the police to take property from people in a variety of circumstances, even when the police do not have sufficient evidence to make an arrest. In these situations, it is important for the property owner to contact a forfeiture attorney to assert his/her rights and take the proper steps to recover that property. We have represented people who have been the victims of outright theft of hundreds of thousands of dollars by the police under the forfeiture laws in Florida, and we often do it at no upfront cost to the claimant.

It looks like the Miami Dade Police Department is no different than many others in Florida that will take a person's cash without any regard to a lack of evidence and perhaps ask those questions later. In a recent case in South Florida, an individual was traveling to Miami from Colombia with about $120,000 in cash. When he went through customs, the police stopped him and asked him questions about the cash. He said he was coming to Miami to buy cell phones to resell at his store in Colombia. The police took his cash anyway and initiated forfeiture proceedings to keep the cash. In the forfeiture pleadings, the state alleged that the individual was using the cash to buy illegal drugs. However, the state offered no specific evidence to support that allegation, and no criminal arrest was ever made.

On the other hand, the claimant was able to present witnesses who would testify that the claimant was in the electronics business and had purchased cell phones in the past from legitimate electronics businesses in Miami for resale in his home country. The claimant also presented receipts for past purchases of cell phones for resale in Colombia. In any case, it was the state's burden to establish probable cause that the cash was the proceeds of illegal activity or used in connection with legal activity. The state failed completely in doing so.

After approximately eight months, as the forfeiture case was slowly moving through the system, the state still had not produced any evidence that the individual or the money was connected to illegal drugs in any way. Finally, a judge dismissed the case, and the individual received his money almost nine months later (minus what he had to pay his criminal defense/forfeiture lawyer after recovering the money).

After winning the case, the forfeiture lawyer filed a motion to recover attorney's fees from the state. The Florida forfeiture statute does allow the prevailing party to recover attorney's fees, but the standard is fairly high. It is not enough for the prevailing party to show he/she won the case. The prevailing party must also show that the state did not act in good faith in any stage of the forfeiture proceedings or that the seizing agency grossly abused its discretion when seizing the property. This is a high standard, and it can be difficult to get a local judge to make such a finding against a local district attorney's office and/or a law enforcement agency.

However, the award of attorney's fees in such blatant abuses of the forfeiture laws is critical as it is the only deterrent to prevent government agencies from stealing people's property under the Florida forfeiture laws. Otherwise, the state can seize property, file forfeiture pleadings in court, force the claimant to hire an attorney, if he/she can, and drag the case out through the normal litigation process in the hopes of getting a good result or a settlement. That process can be demanding, expensive and time consuming for innocent owners of seized property. If the worst thing for the state would be the return of property at the end of the process, that provides no disincentive to steal property from people under the forfeiture laws. If anything, it encourages the state to take property without evidence of criminal activity and abuse the system as some people may not be able to afford a forfeiture lawyer or may be forced to settle before the process ends due to financial pressures. The prospect of the state having to pay large attorney's fees for the claimants in the many abusive cases that occur in Florida is at least some deterrent against forfeiture abuse. It is important that judges award those fees where appropriate as the forfeiture statute allows.

February 26, 2015

Florida Police Officer Was Justified in Stopping Vehicle Where Window Tint Was Too Dark to See Driver

In Florida, a police officer can stop a vehicle if the vehicle's window tinting is too dark. The Florida statute provides that the side windows on a vehicle must have a light transmittance of at least 28% in the visible light range. This can be measured by certain devices after the initial stop is made. Of course, the initial issue is whether a police officer is permitted to stop a vehicle based on his/her opinion that the window tinting is too dark and illegal. A person cannot usually make that determination for certain based on looking at it from another vehicle.

A police officer is allowed to stop a vehicle if he/she has probable cause to believe a crime is being committed or a traffic law is being violated. In a recent case near Jacksonville, Florida, a police officer stopped a vehicle during the day because he could not see the driver through the side window due to the window tinting. He stopped the driver and found marijuana and cocaine inside. The driver was arrested for possession of marijuana and cocaine. The criminal defense lawyer filed a motion to suppress claiming that the police officer did not have a legal basis to make the initial traffic stop. The police officer testified that he pulls drivers over if the window tinting is too dark for him to see the driver. The court allowed this. Since the police officer has no way of determining for certain if window tinting is too dark as the vehicles are driving, if the police officer can establish in good faith that he had probable cause to believe it was too dark, it was a valid stop. The court found that the testimony that the police officer could not see the driver in the daylight was sufficient to establish a good faith basis that the window tinting was not legal.

February 20, 2015

Can the State Use a Defendant's Pre-Arrest Silence Against Him/Her at Trial in Florida?

Most people are aware that the United States Constitution affords people the right to remain silent. This means that a person does not have to give any statement to police that might be incriminating, and a defendant cannot be compelled to testify at his/her own trial. If a person chooses not to speak with police and/or chooses not to testify at trial, the state cannot use that choice against the person. For instance, a prosecutor could never tell the jury to infer that the defendant is guilty because he/she did not testify and defend him/herself at trial.

When a person is arrested in Florida, he/she should be read Miranda warnings. The Miranda warnings inform a person of certain rights, including the right to remain silent and the warning that if the suspect does make a statement, it can be used against him/her in court. That is fairly well known at this point. If a person is arrested and decides not to make a statement, he/she is exercising his/her constitutional rights, and the state cannot mention that silence at the defendant's trial to try and use it against him.

However, there are times when a police officer is investigating a crime and is not sure whether a person is a suspect. In those early stages, before any arrest, if the police officer asks a person questions and the person remains silent, can that silence be used against him/her at trial? Technically, before an arrest or a detention where the person is not free to leave, Miranda warnings and the constitutional right to remain silent are not implicated. What if a police officer arrives at a crime scene, has no idea who the suspect might be, asks a person some questions, that person remains silent and then is later developed as a suspect? Can the state use that silence against him/her?

This came up in a murder case near Jacksonville, Florida. The police came to the scene of what appeared to be a suicide and asked questions of the victim's wife. The wife stayed silent. The police officer did not give the wife Miranda warnings because he did not have any indication the wife was a suspect at that point. Later, the wife was arrested and charged with murder. At the trial, the defendant did not testify, but the state brought out the fact that she failed to answer the police officer's initial questions at the crime scene. The prosecutor argued that her silence was evidence of her guilt in his closing arguments. The wife was convicted of murder.

The criminal defense lawyer appealed the conviction arguing that the state violated her constitutional rights by commenting on her silence when the police came to the scene. The appellate court agreed and reversed the conviction. The current law in Florida says the state cannot comment on a person's silence in response to police questions either before arrest and Miranda warnings or after. The state can use that silence to impeach a defendant at trial. For instance, if the wife testified at the trial and said she told the police officer this or that, the state could bring the police officer in to testify that she was silent, contrary to her trial testimony. However, if the defendant does not testify at the trial or does not say anything at the trial that is contrary to her pre-arrest silence, the state cannot use her pre-arrest silence against her and cannot tell the jury it is evidence of guilt.