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.

July 7, 2014

Large Bank Receives Significant Fine But Still Clearly Getting Preferential Treatment Over Individuals

The Department of Justice (DOJ) and a state attorney's office in New York recently obtained a settlement with BNP Paribas, a large bank based out of France that resulted in a huge fine against the bank. The bank was charged with falsifying bank records to allow it to use the American banking system to do business with forbidden countries such as Iran, Sudan and Cuba. The United States forbids companies from transacting with countries listed as rogues states by the United States government. The government was able to have BNP Paribas sanctioned with a significant fine- about $9 billion. However, BNP indicated it would easily be able to absorb the fine, continue to operate as usual and even continue paying its dividend for 2014. BNP Paribas reported approximately $50 billion in revenue last year, and while the stock price has declined since the announcement of the settlement, it is still well above its 52 week low.

Clearly, this was a significant fine, but BNP Paribas will come out just fine. However, it is important to note that no individual was indicted for this criminal activity. While the company's conduct was serious enough to warrant an unprecedented fine, apparently it was not serious enough to charge any individual with a crime. Alternatively, when individuals are caught committing similar crimes outside the context of a well-capitalized company, they are most likely going to face criminal charges and prison time. As an example, last year an individual defendant was sentenced to federal prison for helping someone wire a few thousand dollars to an unknown recipient in a restricted Middle East country. The rules for corporations and individuals are still drastically different when it comes to committing major crimes.

July 4, 2014

Can an Out of State Medical Marijuana Verification Card or Prescription Be Used as a Defense to Possession of Marijuana in Florida?

In Florida, as in other regressive jurisdictions, possessing the marijuana plant is still a crime. The Florida government still asks taxpayers to pay a lot of money to support the arrests, prosecutions and incarcerations of people possessing this plant. Until it becomes legal to possess marijuana, either for medical reasons and/or recreationally, anyone caught with marijuana assumes the risk of going to jail and ending up with a damaging criminal conviction. In possession of pills cases, a defendant has a complete defense to the charge if he/she can establish that he/she has a valid prescription for the pills with which he/she was caught. This does not normally apply to marijuana cases because medical marijuana is not yet legal and there are no valid Florida prescriptions for marijuana.

However, what if a person in Florida has a valid medical marijuana prescription from another state? In a recent marijuana case near Jacksonville, Florida, the police responded to a disturbance at the home of the defendant and found marijuana inside. She was arrested for felony possession of marijuana. Her criminal defense lawyer defended the case by claiming that she had a valid prescription for marijuana from California. At a hearing on the defendant's motion to dismiss the charges, the criminal defense attorney submitted her California medical marijuana verification card.

The court noted several problems with the defendant's prescription defense. First and foremost, the medical marijuana verification card indicated it was issued three weeks after her arrest. That effectively ended her prescription defense. However, even if the card preexisted the arrest, the defendant did not establish that the marijuana was purchased pursuant to her prescription. The defendant did not show the equivalent of a pharmacy pill bottle which could connect the marijuana to the prescription.

In the United States Constitution, we have what is called the full faith and credit clause which basically says one state must recognize the acts, proceedings and judgments of another state. An obvious example is that a driver's license obtained in Georgia allows a person to drive in Florida. However, this clause does not apply to all laws and may not apply to a defense to a criminal charge such as the one attempted in this case

At this point, it would be risky to possess marijuana in Florida and assume a valid out of state medical marijuana prescription would be a proper defense to possession of marijuana charges. At a minimum, the defendant would need to establish that the medical marijuana prescription was valid at the time of the arrest. The defendant would also need to establish that the marijuana possessed at the time of the arrest was legally purchased pursuant to that prescription. Once those two facts were established, it would likely be a legal argument between the criminal defense lawyer and the prosecutor as to whether the full faith and credit clause and the various criminal laws permit an out of state prescription to be used as a defense to a possession of marijuana charge in Florida.

July 1, 2014

Supreme Court Holds That Police Need Search Warrants to Search Cell Phones

In Florida, we have seen many cases where the police will look into a person's cell phone before or after an arrest without a search warrant or even without probable cause to believe that there is incriminating evidence in the cell phone. Cell phone evidence has been used in court to incriminate many defendants, particularly in drug cases. However, a recent case was before the United States Supreme Court that challenged the state's right to search a person's cell phone without a search warrant. The government largely relied on the argument that the police can search a person's pockets to make sure they are not armed or in a position to destroy evidence without a search warrant. The state argued that cell phone content can be easily deleted so the police should have a similar ability to search a person's cell phone without taking the time to get a search warrant during which a defendant can remove incriminating information.

The Court disagreed and found that a person has a Constitutional right to privacy in his/her cell phone and other devices such as an Ipad or similar mobile device that stores information. The quantity and type of information people keep on their cell phones deserve privacy protection just like tangible items people keep in their vehicles and homes. As a result, except in very limited circumstances, if the police want to search someone's cell phone or similar mobile device, they need to get a search warrant signed by a judge to do so. This is true even after an arrest where the cell phone or mobile device is in the possession of the person arrested and easily accessible by the police.

June 23, 2014

Florida Defendant in Drug Case May Not Be Able to Discover Identity of Confidential Informant

A fair number of drug cases in Florida initiate after someone gives the police information about someone selling or possessing drugs. These informants are often people who were arrested themselves and provide this incriminating information to the police to help them in their own case. The police may take this information and conduct surveillance, make some undercover drug buys and/or get a search warrant. When a drug arrest is made and drug charges are filed, it is rare for the state to disclose the name of the confidential informant, or CI, who provided the information that started the case. A criminal defense lawyer can request the information, but the judge may ultimately have to decide whether the state has to disclose the CI's identity to the criminal defense attorney.

In a recent trafficking case near Jacksonville, Florida, a confidential informant gave information to the police that allowed them to get a warrant to wiretap the defendant's phone. The police used the information from the defendant's phone to make several drug trafficking arrests. The criminal defense lawyer field a motion to force the state to disclose the identity of the confidential informant so the criminal defense attorney could question him/her who may be a material witness.

Florida law protects the identity of confidential informants because they are important tools for the police to gain access to drug dealers and they place themselves in a dangerous position. Keeping them confidential encourages CI's to come forward to the police with information about drug activities. As a result, the general rule is that the state does not have to disclose the identity of a confidential informant to the criminal defense lawyer.

There are, however, exceptions to the rule that would require the state to disclose the identity of a confidential informant in a case. For instance, if the state intends to have the CI testify at the trial, the state has to release his/her identity and give the criminal defense attorney an opportunity to question him/her. The Constitution provides that a defendant, through his/her criminal defense lawyer, has a right to investigate and question witnesses who will be testifying against the defendant in a criminal trial. Also, if the defense can establish that the CI's identity is relevant and helpful to the defendant and is necessary for the defendant to receive a fair trial, the CI's identity must be disclosed. The reason is similar to the prior basis whereby the Constitution requires that a trial against the defendant be fair and the defendant have a right to utilize all evidence that is relevant, material and helpful to the defendant. A criminal defense lawyer cannot just claim the CI is relevant and helpful to the defendant. The defense must assert a legitimate defense to the charges and support it with sworn testimony. The courts have repeatedly held that asserting the CI is necessary to challenge the basis for a wiretap or warrant is not sufficient without more and specific evidence as to why the wiretap or warrant is illegal.

June 19, 2014

In Florida, There is a Key Difference Between Being Present for a Crime and Helping The Criminal Activity

In Florida, a person does not commit a crime by being present when someone else commits the crime and knowing the crime was committed. However, a person can be guilty of a crime if he/she did not actually commit the crime but assisted the perpetrator during or after the crime. That is called being an accessory to the crime and can result in serious felony penalties.

For instance, if two people go to a park and Person A robs the victim. Person B is there when the robbery took place and ran with Person A after the robbery. That alone does not make Person B guilty of robbery or accessory to robbery. If the state cannot prove that Person B knew Person A was going to commit the robbery, Person B had no involvement in facilitating the robbery and Peron B did nothing to help Person A escape from the robbery, Person B would not be guilty of a crime. Of course, the state might still charge Person B for the crime and it may ultimately come down to what the jury believes, but mere presence at a crime is not sufficient to prove commission of the crime.

Add one more fact, and Person B would be guilty of a crime. Assume Person A planned to commit the robbery without Person B's prior knowledge, Person B sees it happen and after the robbery both Person A and Person B run away. They both run to a car, and Person B drives Person A away from the scene of the robbery. This now becomes a situation where Peron B helps Person A get away from the scene of the crime knowing a crime was committed. Now, Person B would be guilty of accessory after the fact of the robbery. If Person A and Person B ran away separately and went to different destinations, Person B would not be accessory. But if Person B assisted Person A in any way to escape the crime, Person B would then be guilty of a crime him/herself.

June 14, 2014

Subsequent Miranda Warnings May Not Cure Prior Police Failure to Mirandize Suspect in Florida

From TV shows, the news and other sources, most people have heard the term Miranda warnings. Unlike just about every legal issue seen on TV, the Miranda warnings that are read on TV are usually somewhat similar to what is read to suspects in real life. Miranda warnings are something that are required both in the Florida and United States constitutions based on the premise that no one shall ever be compelled to make any statement incriminating him/herself.

Police in Florida are not always required to give a suspect Miranda warnings when they talk to a suspect. Miranda warnings are required when a suspect is being questioned after having been taken into custody. This does not necessarily mean the suspect was handcuffed and taken to the police station. If the police create a situation where the suspect does not reasonably believe he/she is free to leave as he/she is being interrogated, Miranda warnings should be given. Those warnings tell the suspect, among other things, that the suspect has a right to a lawyer and has a right to remain silent. Most of the time, exercising both of those rights is a very good idea.

If the police interrogate a suspect in custody and do not recite the Miranda warnings, any subsequent statement given by the suspect may be inadmissible in court. That is the penalty for failing to provide Miranda warnings when required. The charges do not automatically get dropped, and the defendant is not automatically released. However, a statement that was taken from a defendant can be suppressed which may be a significant blow to the state's case.

In a recent murder case near Jacksonville, Florida, the police took three statements from the suspect and only Mirandized her for the third one. The first statement was a consensual encounter with the police, and the suspect was not in custody at the time. That statement was permitted to be used against the defendant because it was not considered a custodial interrogation and Miranda was not required. The second statement was more of an interrogation and took place in the interrogation room at the police station. The police should have given the suspect Miranda warnings before taking this statement. The third statement was taken about an hour after the second one. One reason for this statement was that the police realized they did not Mirandize the suspect during the second statement. They knew they had a problem with that second statement and try to remedy it by starting again with a third statement and giving the proper Miranda warnings.

The criminal defense lawyer was able to get the second and third statements thrown out of court. The second one was obvious since Miranda warnings were not given. The third statement was thrown out because it was close in time to the second statement and the failure of the police to give Miranda warnings with the second statement tainted the third statement. It could not be cured with subsequent Miranda warnings. Had sufficient time elapsed between the second and third statements, perhaps a day or more, the third statement may have been acceptable, but because it was so close to the second statement, it was inadmissible as well.

June 11, 2014

Abandoning Stolen Property Can Be a Defense in a Robbery Case in Florida

In Florida, a person can be convicted of theft, which can be a felony or misdemeanor charge, depending on the value of the item stolen, if he/she takes the property of another with the intent to deprive that person of the property. The intent can be to permanently take the property or temporarily take the property. So, a defendant testifying that he/she intended to return the property is not necessarily a defense to a theft charge.

In Florida, a theft case can become a robbery case if the suspect used force either during the theft or after the theft when he/she was trying to get away. However, it would be possible for a person to commit a theft without force, abandon the property and then subsequent force would not be the basis for a robbery charge. A robbery charge is a felony and likely much more serious than a standard theft charge.

In a recent case near Jacksonville, Florida, the suspect stole some items from a department store. He was seen by store security and followed out of the store. The security officer chased the suspect, and the stolen items either fell out of the suspect's jacket or were intentionally dropped. Thereafter, the officer caught the suspect who showed a gun to the officer and told him to back away. Even though the suspect did not use force or show the gun during the theft, he could still be charged with armed robbery for using the gun to get away with the theft. However, if he had abandoned the theft prior to showing the gun, the defendant could argue the two events were unrelated and a armed robbery charge was inappropriate.

In order to assert a valid abandonment defense, the defendant must establish that he took the property without any force, had completely abandoned the property before using any force and the victim was aware of such abandonment. If all that occurs and the defendant uses some force afterwards, perhaps while being chased by store security, the defendant can use that defense to a robbery charge if the state is claiming the subsequent force was related to the theft. Of course, if the defendant commits a new crime after abandoning the property, such as the threat or use of violence against the people chasing him, that could also be the basis for a new charge separate from the initial theft.

June 5, 2014

Florida Felony Hit and Run Case Reversed Where State Could Not Prove Defendant Knew He Hit Victim

In Florida, it is a very serious felony crime to get into a motor vehicle crash that results in a serious injury or death and leave the scene of the crash without stopping to provide insurance and other information to the police. The idea is that a person who causes a crash must provide his/her insurance information so that the victim can be properly compensated and must speak to the responding officer who will investigate the crash. If a person flees from the scene after causing a crash, the assumption on the part of the state is that the person was doing something wrong while driving, whether drunk driving or driving with a suspended license or driving with an outstanding arrest warrant.

Leaving the scene of an accident would seem like a fairly easy charge for the state to prove. However, it can be difficult depending on the circumstances of the crash and when and how the alleged suspect is caught. In a recent case near Jacksonville, Florida, the defendant hit a person late at night who was standing in the middle of the road on a major highway. The victim was dark skinned and wearing dark clothing. The defendant hit the victim and kept driving. Other potential witnesses saw the crash but were not clear as to how it happened and which vehicle hit the victim because the area was so dark and the victim was hard to see. As for the defendant, he testified that he thought something fell off a truck and hit his vehicle. He did not believe he actually hit a person because he did not expect there to be a person in the middle of the road on a major highway and he never saw anyone. The next day, he checked the damage to his vehicle and saw hair and blood. At that point, he called the police and turned himself in.

His conviction for leaving the scene of an accident with a death was ultimately reversed. The state was able to prove that he hit the victim and left the scene, but the state could not prove that the defendant knew he hit a person. It seems obvious and it is in most cases, but the state does have to establish the defendant knew he hit an actual person to convict him of this crime. In this case, because it was dark, the crash occurred in a place where pedestrians are very rare, other witnesses were unclear about the nature of the crash and the state did not have any specific evidence to prove the defendant's knowledge, the state did not meet its burden of proof on this case. The defendant's explanation that he did not know he hit a person was plausible so he was not guilty of the hit and run crime.

June 2, 2014

DNA on Gun Was Not Sufficient for Possession of a Firearm By a Convicted Felon Conviction in Florida

In criminal cases, DNA evidence is often seen as a strong indicator of the defendant's guilt. Not many cases have DNA evidence presented by the state, but when the state does present DNA evidence, juries usually take note. DNA evidence is certainly well established evidence at this point that can be difficult for a criminal defense lawyer to refute. However, DNA evidence does not necessarily mean what the state wants it to mean or what the state argues it means to the jury.

In a recent case south of Jacksonville, Florida, the police responded to a burglary call. When they arrived, they arrested the suspected burglar and then checked the apartment for evidence. Inside the apartment, the police found a gun in the bedroom. Because the occupant of the apartment was a convicted felon, the police arrested him for possession of a firearm by a convicted felon.

Although it is rare, the police tested the gun for fingerprints and DNA and found viable DNA on the gun. The DNA matched the defendant who lived in the apartment. The police also found the presence of other DNA on the gun but did not test any of the DNA to see if it matched with the burglar. The state argued that since the gun was found in the defendant's apartment and had his DNA on it, the defendant was guilty of possession of a firearm by a convicted felon.

The defendant's conviction was ultimately reversed. The state failed to refute two counterarguments to their DNA evidence. First, while the DNA on the gun may have proven that the defendant possessed the gun at some point, the expert could not testify as to when that DNA evidence made its way onto the gun. It was possible that the defendant touched the gun, and transferred his DNA onto the gun, prior to becoming a convicted felon. Since that possibility was not foreclosed by the state, the conviction was not proper. Additionally, the state did not deal with the possibility of secondary transfer of DNA. The state's expert acknowledged that a person can transfer another person's DNA to an object by touching both objects in succession. Since it was clear that a burglar had been in the apartment before the police found the gun, it was possible that the burglar touched something with the defendant's DNA on it and transferred the defendant's DNA to the gun by handling it as well. As a result, despite the DNA evidence, the state did not prove its case beyond a reasonable doubt.