August 18, 2014

When Can Police Officers in Florida Use Deadly Force?

With the events in Ferguson, Missouri all over the news, there is a lot of information, and a lot of misinformation, about when a police officer can use deadly force against a person. By deadly force, at least in Florida, we mean force that is likely to cause death or a serious injury. An obvious example would be when a police officer shoots someone.

In Florida, a police officer can use deadly force in certain situations. Like anyone else, a police officer can use deadly force if it is reasonably necessary to do so for self defense or to protect another person from imminent serious injury or death. More specific to a police officer's duties, a police officer may use deadly force if necessary to prevent a person from escaping jail, prison or custody while he/she is awaiting trial. A police officer can also use deadly force to arrest someone fleeing from a crime if the police officer reasonably believes the suspect is a threat to him/herself or others or if the officer believes the suspect is fleeing a crime involving the infliction or threat of infliction of serious harm to others.

The deadly force law in Florida gives a police officer a lot of leeway in using deadly force against suspects. The law is clearly not limited to situations where self defense or defense of others is an issue. A police officer in Florida is allowed to use deadly force in many situations where the suspect is believed to be escaping certain situations, without of course, having to meet the high evidentiary standard used in criminal cases

However, what often happens, and it may be happening in the Ferguson, Missouri case, after the police shoot an apparently unarmed person, the police and/or prosecutor's office start digging into the deceased's background to see if the deceased had a criminal history. Many people think it is justified for the police to shoot someone if we later learn the deceased had a criminal history. That is a common tactic but not one that is particularly relevant if we follow the law. Of course, if the deceased was fleeing from a serious crime at the time of the police shooting, that would certainly be relevant. But, the fact that the deceased was arrested for marijuana possession three years ago, or any number of other crimes in the past, is not likely relevant to whether a police officer was justified in shooting him/her at a later date.

August 15, 2014

Police in Florida Cannot Always Search a Suspect's Cell Phone During a Valid Arrest

In Florida, it is a general practice among police officers to search a person after that person has been lawfully arrested. While most searches require consent of the person being searched or a valid search warrant, one exception is the search incident to a lawful arrest. At a minimum, this exception allows the police to search a person once he/she has been arrested. This exception also generally allows the police to search a person's belongings that he/she has on him/her at the time of the arrest. One of the primary reasons for a search incident to a valid arrest is that the police officer is preparing to place the suspect into his/her custody, drive him/her to the jail and then process him/her into the jail. Therefore, the police have a right to make sure the suspect does not have any weapons or anything else that might harm the officer or create a dangerous situation.

Over the years and as cell phones have become more and more prevalent, police officers expanded this exception to go through a person's cell phone to look for incriminating evidence. As we all know, a cell phone is capable of storing all sorts of information about a person, his/her contacts and his/her activities including phone numbers, emails, text messages, photographs, and many other items. A cell phone could potentially bring all sorts of information to the police and be the basis for many new charges. Initially, courts were allowing these spontaneous searches by finding that police officers can search just about anything found on a person at the time of his/her arrest.

Fortunately, these warrantless searches were being challenged enough that some rational constitutional arguments started to win out. The Constitution provides that people have a right of privacy in their belongings. It is one thing to allow a police officer to search a person and his belongings after an arrest to make sure there are no safety issues. However, there clearly is not an immediate safety concern with the information stored on a cell phone. Ultimately, the courts seemed to recognize this and required the police to have consent or a search warrant to search a person's cell phone in his/her possession upon arrest.

The Florida Supreme Court has also held that the police cannot search a person's cell phone without a search warrant just by virtue of the fact that he/she has been arrested and has the phone with him/her. If the police could somehow show that the cell phone contained relevant evidence that was in danger of being destroyed if the police did not search it upon arrest, they would have an argument for such a search. However, absent that rare circumstance, the police in Florida will need consent or a search warrant to search a person's cell phone before, during or after an arrest.

August 12, 2014

In Suspected Florida Pill Mill Case, How Does the Court Deal With Confidential Patient Records?

Over the last several years, local, state and federal law enforcement agencies have focused on shutting down what they call "pill mills" and arresting and prosecuting many people involved with these alleged pill mills from office staff to doctors to owners. A "pill mill" is a pain management clinic that sees a lot of patients and dispenses pain killers such as Oxycodone and Oxycontin in large quantities without a proper examination and doctor patient relationship. We have seen many of these cases in Florida and Georgia and defended doctors and clinic owners in these cases.

The police will hear about these alleged pill mills and start their investigation in a number of ways. They will conduct surveillance outside the clinic and see how many people are going in and out of the clinic in a given day, and how quickly. They will send in undercover officers pretending to be patients looking for quick access to pain killers and document what kind of encounters they have with the doctors, if any. They will interview patients to see what kind of evaluation and discussion they had with the doctors. Ultimately, if the police believe they have sufficient evidence that the clinic is a pill mill, they will get a search warrant and seize all of the medical records at the facility.

This presents a problem because a person's medical records are confidential, and it is unclear that the police can obtain a person's medical records without proof that this person was involved in illegal activity. Even if a clinic is operating as a pill mill, that does not mean all of the patients are involved. If the police come in and take all of the patients' records, it is likely that they are taking medical records of patients who have nothing to do with the investigation. That violates medical privacy laws.

In a recent pill mill case near Jacksonville, Florida, the police conducted their investigation as indicated above, obtained a search warrant and took all of the medical records in the pain clinic. The doctors and several others were arrested on serious drug charges. The criminal defense lawyers filed a motion to suppress the medical records arguing that the police overstepped their authority by taking all of the medical records rather than just the ones that were related to the drug case.

The court held that the police can obtain medical records of a patient who is not involved in criminal activity if those records are relevant to the criminal investigation. However, the state should not have unconditional access to all of these medical records for any purpose. The Court indicated that the search warrant authorizing the seizure of medical records should provide that the medical records be sealed once they are seized. After the seizure, the medical records should remain sealed until the parties had a hearing during which the court would determine which records can be seen and used by the state and which records remain private. The defense and the state would be entitled to present evidence, expert testimony and legal argument to suggest whether the medical records, or some of them, should be remain private or released to the state.

August 9, 2014

Prosecutor Could Not Admit Evidence of Conversation Between Defendant and Psychotherapist in Florida Criminal Case

In Florida, there are certain privileges a defendant has in a criminal case that preclude the prosecution from presenting evidence to the jury. For example, private conversations between a defendant and his/her attorney, doctor, psychologist or psychiatrist and other specified individuals are privileged and cannot be discovered or admitted into evidence by the state. These conversations must generally be kept private at the time they take place. For instance, if you see your psychologist at a party and have a conversation with him/her in front of other people, that conversation may lose its privileged status. On the other hand, if you have a regular private appointment with a psychologist, it is highly unlikely the state could ever learn what was said during that meeting or be able to use anything said against the defendant in a criminal case.

These privileges remain intact even if someone overhears the discussion as long as the defendant had a reasonable expectation that the conversation was private. In a recent assault case near Jacksonville, Florida, the defendant was taken to the hospital after he was arrested. In the emergency room, doctors approached him and asked him a variety of questions about his condition and the incident that led to his arrest. Because the defendant was under arrest at the time, a police officer was nearby guarding him. The defendant made some incriminating statements to the doctors that the police officer overheard and conveyed to the prosecutors. The prosecutors sought to have the police officer testify to those statements at the trial.

The criminal defense lawyer filed a motion to exclude the statements at trial arguing that they were privileged statements between the defendant and his doctors. The state argued that the privilege did not apply because the defendant made the statements in the presence of the police officer.

While the presence of a third party witness to a statement often results in a waiver of the privilege, that is not the case when the third party is there to further the interest of the defendant or the third party is necessary to the communication. In this case, the court found that the police officer's presence was mandatory because the defendant was under arrest. Therefore, it was necessary to have the police officer there so the defendant could be treated by the doctors after his arrest. As a result, his presence did not waive the defendant's privilege. This would also apply if other third parties were present to further the defendant's interest, such as nurses or other hospital personnel who were present to assist with the evaluation and treatment of the defendant.

Of course, conversations between a defendant and his/her lawyer are also privileged. This is true even if a paralegal or other law firm staff member is present during the meeting to assist. However, if a non-essential friend or witness is present and hears what is discussed between attorney and his/her client, the meeting may lose its privileged status.

August 6, 2014

Senator Proposes Changes to Federal Forfeiture Laws

While people normally have a pretty good familiarity with criminal laws, they do not always understand how the forfeiture laws work. The federal government has forfeiture laws that allow the government to seize and keep the property of people for a variety of reasons. The government can take and hold someone's property with very little evidence and judicial oversight for a long period of time. The burden of proof on the government to forfeit property is considerably lower than the "beyond a reasonable doubt" standard that applies in criminal cases. Therefore, the government can seize a person's vehicle or a company's operating account based on very little evidence and without a meaningful day in court for the claimant and then forfeit ownership of that property using the same low standard as in civil lawsuits. The state of Florida has similar forfeiture laws and procedures.

We have handled many forfeiture cases where the government or the state has seized property from clients based on assumptions and speculation alone and no specific evidence. In some of those cases, the claimant was not arrested, and criminal charges were never even considered. In other words, the government took their property with little or no evidence of criminal activity and no formal charges. In one case, more than a million dollars was taken from a bank account. We were able to recover the assets for our clients, but the process can be lengthy due to the advantages the forfeiture laws provide to the state and federal governments.

To put it another way, the forfeiture laws heavily favor the government, at least in the beginning of a case. There are avenues for a person or company to get his/her/its property back, but it is important to act quickly and consult a law firm that understands the law and procedures to properly handle a forfeiture case, whether in Florida state court or federal court.

There may be some changes coming. A United States senator has proposed a law referred to as the Fifth Amendment Integrity Restoration Act that would raise the burden of proof on the government before it would be allowed to move forward with forfeiting property from a person or company. Currently, to seize (i.e. take) property, the standard is very low and something akin to probable cause, if not lower in practice. The standard for forfeiting (i.e. keeping) property is a preponderance of the evidence which is what is used in civil cases and can be quantified at a 51% confidence level or higher. The new law would change the standard to clear and convincing evidence which is closer to the well known criminal standard. In other words, the government would have to clearly and convincingly prove that the property is connected to criminal activity.

Another trick state law enforcement agencies use is to turn their forfeiture cases over to federal agencies. They do this because some state laws require forfeiture proceeds to go into a state fund (as opposed to a local fund the law enforcement agency can specifically use) or a designated fund not specifically accessible by the seizing law enforcement agency. These laws are obviously designed to remove the incentive and profit motive law enforcement agencies would have if they knew they could profit off of forfeitures. However, some law enforcement agencies have circumvented these laws by seizing property and then turning the case over to a federal agency that is not bound by the state laws with the understanding that the federal agency will kick a percentage of that money directly back to the seizing state agency once the case is finished. The new law would force state agencies to abide by these state laws and remove the profit motive from their seizures and forfeitures.

It is unclear if this proposed law will go anywhere. Knowing how much our local, state and federal governments love taking money and other property from people, we are not optimistic. However, at a minimum it might raise some awareness about the dubious federal and Florida state forfeiture laws about which many people know little to nothing.

In the meantime, if you have any property seized to be forfeited by any law enforcement agency, feel free to contact us for a free consultation about your rights.

August 3, 2014

Florida DUI Defendant Unable to Get Case Thrown Out When Police Corrupt DUI Video

In DUI cases in Florida, many people assume that the police car has a video camera that records the DUI investigation and arrest. The DUI video can be a good thing for a defendant if the defendant looks good on the video, and it shows that the police officer is exaggerating when he/she says the defendant was drunk. On the other hand, the DUI video can be problematic for the defendant if it shows the signs of impairment that the police officer indicated in his/her report and will testify to at the DUI trial.

As prevalent as video is these days, it should not be too much to ask for the police to record these DUI encounters. Because DUI arrests are so subjective (if the police officer thinks you are impaired from alcohol, you are probably getting arrested for DUI), it is important to have a DUI video so a jury can decide for themselves if the defendant was impaired rather than relying on the subjective memory of a police officer about an encounter that occurred months ago. Many police cars in the Jacksonville, Florida area do not have cameras. When we handle DUI cases with no video, we place the blame on the state since they have the burden of proof in DUI cases, and they have the capabilities to put video cameras in their police cars or bring a police car with a video camera to the scene.

In some cases, the police car has a video camera, but it does not record properly, it only records part of the DUI encounter or the video is lost. In a recent DUI case near Jacksonville, Florida, the police officer stopped the defendant and turned on his video camera. He went through the usual DUI investigation and ultimately arrested the defendant for driving under the influence of alcohol.

During the criminal case, the criminal defense lawyer requested a copy of the police officer's video recording. When the criminal defense attorney viewed the DUI video, he saw that the video was useless because the police officer's vehicle had condensation on the windshield which obscured the camera's view. The police officer had left the air conditioning on in the vehicle causing the windshield to fog up. The police officer never checked the video camera during the DUI investigation to make sure it was properly recording the encounter, despite the fact that his department policy required him to do so.

Because the video was useless, the criminal defense lawyer filed a motion to dismiss the case. He argued that the police officer failed to follow department policy and basically destroyed critical evidence in the DUI case. The criminal judge agreed with the criminal defense attorney, but the appellate court reversed that decision. The appellate court said dismissing the case was too harsh a penalty where there did not appear to be bad faith on the part of the police officer. Instead, the appellate court told the criminal judge to consider less serious sanctions. For instance, the judge could prevent the state from introducing any evidence of the field sobriety examinations that were supposed to be recorded on video since the defendant could not use the video to refute the police officer's testimony.

In addition to whatever sanctions the judge imposed, the criminal defense lawyer could always argue that the state did not meet its burden of proof in a DUI case since the police officer messed up the video. This is an argument we always use in DUI cases where the police officer did not have a video camera during the DUI encounter. It is a stronger argument when the police officer had the camera but did not follow police policy and corrupted the evidence.

July 31, 2014

An Anonymous Tip of Drug Activity is Not Sufficient for a Search of a Residence in Florida

If the police want to search a house for drugs or other evidence of criminal activity, there are two primary ways they can do that. One, depending on how the the property is situated, the police can usually walk up to the front door, knock and ask to search the residence if someone answers the door. If the person who answers the door has apparently authority to give the police permission to search the residence, and does so, then the police can search the residence. Two, if the police have specific evidence that there are drugs or other evidence of criminal activity in the house, they can apply to a judge for a search warrant. If the judge signs the search warrant, the police can use that search warrant to search the residence.

Even where there is a search warrant, a criminal defense lawyer can still challenge the search in the subsequent criminal case. Search warrants are difficult to overcome in criminal cases because the criminal defense attorney is basically asking a judge to rule that the initial judge who signed the search warrant made a mistake. Judges do not like to do that. Even worse, the second judge already knows drugs or other criminal evidence were found in the house, otherwise there would not be a criminal case in which to file the motion to suppress.

But, every now and then, a criminal defense lawyer can successfully challenge a search warrant. In a recent case near Jacksonville, Florida, the police received an anonymous tip that the suspect was making and selling methamphetamine in his house. Normally, the police will then take steps to try and corroborate the tip- conduct surveillance outside the house, knock on the door and see if they can detect an odor or get someone to answer questions, check the trash on the side of the road and other law enforcement techniques. In this case, the police did some surveillance but did not see anything indicating there was drug activity at the house. They also checked the criminal histories of the occupants of the house and noted they had prior drug convictions. Based on this, the police went to a judge, got a search warrant, searched the house and found methamphetamine and drug paraphernalia inside.

The criminal defense lawyer filed a motion to suppress and argued that there was not sufficient evidence of drug activity to justify a search warrant for the house. The criminal judge ruled against the criminal defense attorney, as they often do in these circumstances, but the defendant won the argument on appeal. An anonymous tip about drug activity is not very reliable and cannot be the basis for a search warrant. Anyone can say anything about anyone else for whatever reason, and if the person will not identify him/herself, that tip is less credible. Beyond that, there is nothing illegal about having a criminal record. The police needed to present some specific evidence that the defendant was engaged in criminal activity in his house. Had the police searched his trash and found materials used to make methamphetamine, that would have corroborated the tip and likely been sufficient for a search warrant. Since they did not do that, the drug evidence obtained during the search was ultimately thrown out.

July 28, 2014

Police in Florida Cannot Grab Suspect Without Reasonable Suspicion of Criminal Activity

The Constitution protects people from unreasonable searches and seizures in Florida. What constitutes a search and/or seizure is not always obvious. For instance, if the police pull you over while driving, that is clearly a seizure under the law. If the police start searching your vehicle after the stop, that is clearly a search under the law. However, some encounters with the police are not so obviously searches and seizures.

For a criminal defense lawyer trying to get evidence thrown out of a criminal case, the attorney must argue that the encounter was a seizure and/or search and that the police did not have specific evidence that the defendant was involved in criminal activity to justify the seizure and/or search.

In a recent robbery case near Jacksonville, Florida, the defendant had allegedly robbed a convenience store with a gun while wearing a mask. The cashier put the money in a bag, and the suspect left. The police searched the area and found the defendant on the street. He matched the description of the robber, but he was wearing different clothes. The police officer blocked his path and asked him to come talk to the officer. The officer then put his hands on the defendant's chest and back to see if his heart rate was elevated. The police officer detained the defendant, searched the area and found evidence of the robbery in the nearby bushes. They also obtained statements from the defendant. The defendant was arrested for armed robbery.

The criminal defense lawyer filed a motion to suppress the evidence obtained by the police after stopping the defendant because it was an illegal search and seizure. The court found that initially this was a consensual encounter. The police are free to ask a suspect to stop, answer questions and let the police search them. If the suspect agrees, the police can proceed. However, if the police do not have consent, what they can do with a suspect is limited. If the police do not have specific indications that the person is or was recently involved in criminal activity, the police officer cannot detain the suspect and cannot grab him to check his heart rate. In this case, the police just had a general description of the robber. That was not enough to detain the defendant, grab him and try and discover evidence by checking his heart rate. As a result, the criminal defense attorney's motion to suppress the evidence was granted.

July 25, 2014

Florida City Noise Ordinance Found to be Unconstitutional

Ocala, Florida, a city near Jacksonville, Florida, enacted a city ordinance that prohibited "unnecessary or disturbing noises". Normally, this comes up when a person is playing loud music in his/her vehicle. An individual was cited in Ocala, Florida for violating this noise ordinance and appealed his case claiming that the law is unconstitutional.

More specifically, the ordinance prohibits loud, jarring, raucous or unusual noise which annoys, disturbs, injures or endangers the comfort, health, safety or peace or reasonable people within the city limits. A law, whether it is a city ordinance that can normally only result in a fine, or a criminal law that can result in jail time, is unconstitutional if it is vague and overbroad. A law is overbroad if it addresses constitutionally protected activities as well as unprotected activities. In other words, if the law is worded to broadly so that it covers too much conduct, more than necessary, it will be unconstitutional.

A law is vague if it does not precisely indicate to people what conduct the law defines as illegal. The Due Process Clause of the Constitution requires the government to make laws that specifically and clearly warn people what actual conduct is being criminalized. If the law is poorly written so that it is not clear what people should do and not do to avoid criminal activity, the law is unconstitutionally vague. With vague laws, the police and the state have a greater opportunity to arbitrarily or discriminately apply the law, and the Constitution specifically prohibits that kind of application of the laws. For instance, with a law like this, one might guess that the police in Ocala would be more likely to pull over a young person playing rap music than an older person playing Beethoven, if both were played at the same noise level.

In this case, the Florida court held that the law was both overbroad and vague. It was overbroad because playing music is a common form of expression, and the law was written too broadly so that it infringed on a person's right to express him/herself by playing music in a vehicle. It was vague because the law basically says a person can be in violation of the ordinance if he/she plays music that a reasonable person finds annoying. How would a person deciding which music to play and how loudly to play it know what this hypothetical reasonable person considers annoying? For that reason, and others, this law was found to be unconstitutional.

Some people may read this and wonder what impact an ordinance like this may have. What is the big deal? Just turn your music down or pay a fine if you get caught. One area this can be a problem is that a law like this gives the police a basis to stop you. A police officer can use this ordinance to stop your vehicle, and all the officer has to do to justify the stop is say you were playing loud, annoying music. How are you going to prove you weren't? Once that police officer stops you, it not difficult for that traffic stop to turn into a criminal investigation. Many marijuana arrests, subjective DUI arrests and other criminal arrests stem from what appears to be a harmless traffic stop at first. Given how ridiculous our drug laws are and how subjective a DUI arrest can be, the fewer reasons the police have to stop your vehicle, the better.

July 16, 2014

Seizure of Substitute Assets in a Forfeiture Case in Florida

The Florida forfeiture statute allows the government to take the property of people when that property was used in conjunction with certain criminal activity or represents the proceeds of certain criminal activity. As an example, if the police arrest someone immediately after a drug transaction and the defendant is found with $10,000 in cash upon the arrest, the police are going to take that money and attempt to forfeit by claiming it is the proceeds of illegal drug activity.

The government will attempt to forfeit a person's property in many other situations, even when they do not even make any arrests or bring any criminal charges. If the state can establish by a preponderance of the evidence (50+%) that the property was used to facilitate certain criminal activity or is the proceeds of certain criminal activity, they may be entitled to keep that property.

What happens when the state believes a person made money from criminal activity but cannot actually trace that money that is the proceeds of the criminal activity? In those cases, the state will look for any other assets the suspect has and try to forfeit them as substitute assets.

For instance, in a recent forfeiture case near Jacksonville, Florida, the police arrested several pharmacy employees for selling Oxycodone to people providing fraudulent prescriptions. The police determined that the suspects made approximately $150,000 selling the Oxycodone. The police sought to seize and forfeit those proceeds from the illegal sales, but they could not trace the money from those sales. Instead, the police seized the bank accounts of the various defendants and intended to forfeit those funds, up to $150,000, as substitute assets. Substitute assets are basically assets of the defendant/suspect to be seized to make up for the fact that the government cannot find the specific assets that were the result of the criminal activity. For instance, if the police claim a person stole $75,000 through fraud and cannot find that money but know the suspect owns a $75,000 vehicle, the police can try and forfeit the vehicle as a substitute asset.

In this forfeiture case, the state could be allowed to seize the substitute assets but not before the state actually won the case, or obtained an order from the judge indicating that the state could forfeit assets of the defendants/suspects. If the state has probable cause to believe specific assets were connected to criminal activity, the state can seize them while the forfeiture cases is pending. However, if the state cannot find such assets and wants to rely on substitute assets, the state can only go after the substitute assets once the state has successfully won the forfeiture case.

July 13, 2014

Can Police in Florida Pull You Over if the Color of Your Vehicle Does Not Match the Color Listed on the Registration?

Many drug cases, DUI cases, gun cases and other kinds of criminal cases begin with a simple traffic stop in Florida. A police officer will make a routine traffic stop and then claim to observe signs that the driver is impaired from alcohol or smell the odor of marijuana or observe other suspicious signs of possible criminal activity. From there, a criminal investigation begins, and a much more serious police encounter results in an arrest.

When this happens, the criminal defense lawyer can file a motion to suppress any evidence of criminal activity that was obtained by the police officer after the initial stop if there is reason to believe the original stop of the defendant was unlawful. If successful and the court agrees that the original stop was illegal, then the evidence obtained after the stop will likely be thrown out followed by the criminal charges being dismissed.

In a recent marijuana case near Jacksonville, Florida, a police officer saw what he considered to be a suspicious green vehicle driven by the suspect. As they often do, the police officer ran the vehicle's tag in his computer. His computer showed that the registration on the tag was for the same make of vehicle but a blue color. Based on the fact that the vehicle's color did not match the color listed on the registration, the police officer stopped the vehicle. The police officer then smelled an odor of marijuana coming from the vehicle, searched it and found a large quantity of marijuana inside. The driver was arrested for felony possession of marijuana.

The criminal defense lawyer filed a motion to suppress the marijuana evidence claiming that the police officer did not have a legal basis to stop the vehicle. In fact, the defendant testified that he had the vehicle repainted which explained the inconsistency with the registration. The court ruled in favor of the defendant. A police officer may not stop a driver based on a mere suspicion that he/she is breaking the law. The police officer must have a well-founded basis from specific facts suggesting criminal activity. In this case, the court noted that it is not illegal to drive a vehicle of a different color than what is listed on the registration. It is also not illegal to fail to contact the DMV and update them with the new color of one's vehicle. As a result, the defendant in this case was not involved in any criminal activity when he was pulled over by the police officer. Noncriminal behavior can be sufficiently suspicious to justify a traffic stop and subsequent investigation, but merely having a different color vehicle than what is on the registration is not enough to qualify for suspicious behavior that can justify a seizure/traffic stop and investigation.

July 10, 2014

There is No Reasonable Expectation of Privacy in One's Bank Records

We have written at length about various search and seizure issues including whether the police need a search warrant to conduct certain searches. As many people know, the Fourth Amendment protects people from unreasonable searches and seizures conducted by the government. However, in order to be afforded such protection, a defendant in a criminal case must establish that he/she had a reasonable expectation of privacy in whatever was searched. For instance, a person clearly has a reasonable expectation of privacy in his/her home so the police cannot just come in to search it without consent or a search warrant in most cases. As for a vehicle, a person normally has a reasonable expectation of privacy in his/her vehicle, however if he/she leaves what is clearly identified as marijuana on the seat where a police officer walking by can see it through the window, that might be a different story.

We recently discussed how a recent United States Supreme Court ruling requires the police to get a search warrant before searching a person's cell phone or similar mobile device. However, people may not know that the Court does not believe a person has a similar reasonable expectation of privacy in his/her bank records. A person who deposits money into a bank and uses a bank credit card does not have a reasonable expectation of privacy in those bank records. This allows the government to obtain those bank records with only a subpoena (a document the government signs without a judge's approval and without the suspect knowing about it) sent to the bank rather than a search warrant that requires probable cause and a judge's approval.

Bank records are critical in a lot of criminal cases brought by the government. They can establish that a suspect deposited money in amounts and at times consistent with theft or fraud allegations. They can show wire transfers among co-conspirators. They can show credit card or withdrawal transactions that can put a person at a given location at a certain time. Bank records can establish a lot of critical points the government needs to make in order to prove a criminal case. Based on the current state of the law, the government can obtain those records without a search warrant in many cases.