Jacksonville Criminal Lawyer Blog

The U.S. Justice Department issues a yearly report on the threat created by illegal drugs in the United States. This National Drug Threat Assessment is a lengthy report that discusses various drugs, where they come from, who is using them, who is selling them, how drug dealing is financed, the effects of illegal drugs on society and other issues on a macro scale. Some of the highlights of the report are as follows.

More than 35 million people used illegal drugs or abused prescription drugs in 2007.

More than 52% of all inmates in federal prisons are there due to drug offenses.

Cocaine is the leading drug threat in the U.S., and the vast majority of cocaine comes from Mexico across the U.S.-Mexican border. However, the availability of cocaine has decreased in most U.S. markets.

Methamphetamine is the second leading drug threat in the U.S. followed by marijuana, heroin, prescription drugs and ecstasy (MDMA). Methamphetamine production is expected to increase from 2007 levels along with domestic growing of marijuana (cannabis). The potency of marijuana has also increased.

Illegal prescription drug distribution is on the increase.

The entire report can be found here.

In Florida and across the country, prosecutors are bringing more criminal cases against people suspected of committing mortgage fraud. Mortgage fraud can be committed in a number of ways. Some examples include: buyers using fake identities to obtain loans and purchases houses, using fraudulent appraisals to inflate the price of a house so it can be resold at an artificially high price, paying bribes or kickbacks to get mortgages approved and forging mortgage documents (i.e. falsifying a buyer's income to make it appear that he/she is able to afford a higher mortgage) to get a mortgage approved.

When mortgage fraud is committed, houses are sold to people who would not be able to afford them under normal circumstances, and housing prices become artificially inflated. The result is that ultimately mortgages are not paid and there are numerous foreclosures which can crash the housing market. A crashing housing market affects most homeowners, not just the ones who obtained their home by fraudulent means. Another result is that mortgages become much harder to get for everyone, which of course negatively affects the sale of homes and further drags down the housing market.

The United States Justice Department has formed more than 40 mortgage fraud task forces across the country, and federal mortgage fraud cases have more than doubled over the last few years, according to an article at www.Sfgate.com. In that time period, it is estimated that mortgage lenders have lost approximately $4 billion. Florida and Georgia are among the states with the highest foreclosure rates. Florida and two other states have half of the country's mortgage fraud complaints over the last few years.

Last Month, the Jacksonville, Florida law firm of Shorstein & Lasnetski which handles state and federal criminal defense, personal injury, wrongful death and business litigation matters in Jacksonville and throughout Florida and Georgia prepared a blog post about an issue that has potentially crippling ramifications for companies but of which few companies are aware. The issue relates to the low standard that is applied when attributing vicarious criminal liability to companies based on the unlawful acts of their employees. The blog post can be read here. The Jacksonville Business Journal read the post and asked to publish a copy of it. A version of the post more suitable to that publication can be found here.

The post and the article were written as a reaction to our reading of a federal criminal case out of the Second Circuit called United States v. Ionia Management. We thought it was troubling how a company can be faced with severe financial penalties based on the conduct of any employee who commits a federal crime even if it is in derogation of company policies and procedures.

At the time of that blog post and that article, the Ionia Management case was still pending. Since that blog post, the Second Circuit has affirmed the ruling discussed in the post and the article. As a result, companies looking for a higher standard for vicarious criminal liability obtained no relief from the Ionia Management case.

As forensic technology is becoming more advanced, police across the country are solving fewer homicides. The FBI maintains records on murder clearances rates which refer to the percentages of murders that are solved in any given year. When murder clearance rates were first documented in the early 1960's, about 90% of murders were solved. According to the latest FBI figures, just over 60% of murders were solved in 2007. Over that time period, the annual number of murders reported in the U.S. have increased from 4,566 to 14,811.

The decrease in the murder clearance rates can be attributed to a number of factors. In the past, more murders were committed by people who knew or had some connection with the victim. With the increase of gang and drug related murders, murders have increasingly been committed by people who had no or little connection to the victim making it more difficult to solve. When the murderer and the victim are related or otherwise acquainted, it is often easier for police to establish a suspect by analyzing motive and opportunity. Another factor is that witnesses have become less likely to give statements to police and testify in court. In some communities, people are becoming very proactive in letting residents know that if they talk to the police about a crime, there would be serious repercussions. Whatever CSI techniques may be available, witness testimony is still a critical part of most criminal investigations.

A St. Augustine, Florida woman (Pamela Niland) allegedly dumped hazardous waste taken from Flagler Hospital, including vials of blood and drugs and old needles, into a dumpster belonging to a St. Johns County construction company, according to an article at Firstcoastnews.com. As most people know, hospitals and doctors' offices have procedures and waste containers for properly and safely disposing of such hazardous materials. According to the article, the crime was caught on a surveillance camera and also observed by a witness. Pamela Niland had not been arrested as of the time the article was written.

This article reminded me of a post I wrote last month about companies that can be criminally liable for the actions of their employees. That post was published in the Jacksonville Business Journal, and it discussed how a company can be held criminally liable for the acts of an employee if the employee commits an act in violation of federal law while acting in the course and scope of his/her employment and acting to benefit the company. As the federal law currently stands, in such a case, it is not a defense for the company to show that the employee was a low-level employee or that the company undertook efforts to prevent such unlawful acts. I am not suggesting that Flagler Hospital would be criminally liable in this reported case- there is no indication that the federal authorities are involved, and it is not clear if Pamela Niland was an employee of Flagler Hospital at the time this act was allegedly committed. However, this can be the type of unlawful act committed by an employee that unexpectedly implicates an employer and subjects the employer to severe financial penalties for something over which they may have had little or no control.

The Jacksonville Sheriff's Office (JSO) announced that three people were arrested (Alex Campbell, Frederick Campbell and Temario Wiley) on drug trafficking charges after police found a large amount of marijuana that had been delivered by UPS to a house on Praver Drive in Jacksonville. The Jacksonville police also seized $500,000 and guns incident to the arrests. According to the article at News4Jax.com, the Florida Department of Law Enforcement (FDLE) and the Bureau of Alcohol, Tobacco, Firearms and Explosives (ATF) were also involved in the drug trafficking investigation.

It is not uncommon for an investigation in Jacksonville, Florida or anywhere else for that matter to begin and end this way. Police will often receive a tip of drug related activity from a buyer of illegal drugs or someone involved with or associated with the suspects who has been arrested and then provides information about others to avoid, or reduce his/her exposure to, jail or prison. This way, the police will work their way up the chain to try and arrest those people who are more prominent in selling drugs or bringing them into the city. It is also not uncommon for people to send drugs to each other via UPS, Federal Express, the United States Postal Service and other commercial delivery companies. However, there are employees of those entities who are trained to detect packages containing drugs and when they find such a package, they will alert the police who will bring a drug dog and/or seek a search warrant for the package. If the police decide to conduct a controlled delivery of the package to the intended residence, legal questions arise as to whether the drugs and/or knowledge of the drugs can be attributed to the person who accepts the package and anyone living in or present in the home when the package is delivered.

If you have been investigated or arrested on drug trafficking or other drug charges, contact a law firm whose attorneys understand the many legal issues that are present in drug cases so your rights can be protected.

A Jacksonville, Florida elementary school teacher at Cedar Hills Elementary School (Gina Cevasco) was arrested after Jacksonville Sheriff's Office (JSO) officers reportedly responded to her house in reference to a drug complaint, according to an article on News4Jax.com. The JSO officers apparently obtained consent to search the house from her son, and then her, and found the drugs and gun in the house. The article does not give any further details and without them, it is hard to specifically evaluate the several issues that are potentially present, a couple of which include: whether the consent to search initially given by the son was legally sufficient to allow the Jacksonville police to search when and where they did; whether the consent to search obtained from the son and later the mother/teacher was lawfully obtained; whether the tip the police received and any other evidence they may have had were sufficient to rise to the level of probable cause allowing the police to obtain a search warrant if consent had not been given; based on where the drugs and gun were found and the number of people who have been in the house, whether the drugs and gun can be attributed to any particular person.

One issue that immediately came to mind after reading the article is that many people do not know their Constitutional rights when it comes to such encounters with police. If the police approach a person on the street, in his/her car, at his/her home, no matter what the police officer says and how much they purport to know about drug or other illegal activity taking place, a person has a right to refuse to give consent to police to search his/her person, home, car or other belongings.

If you have questions about your rights when it comes to a drug investigation, arrest or charge, an encounter with police or any other search and seizure issue in the Jacksonville, Florida or Northeast Florida area, contact an experienced law firm whose attorneys understand the ever-changing law in this area so your rights can be protected.

Harry Shorstein recently decided not to run for reelection after serving for approximately 18 years as the State Attorney for the Fourth Judicial Circuit in Florida which includes Duval County (Jacksonville), Clay County and Nassau County. Instead, Harry Shorstein decided to return to private practice and join his son, Paul Shorstein, and his partner, Jeremy Lasnetski. Harry Shorstein brings a wealth of experience in the several areas in which he practiced not only as the State Attorney for many years but also as the General Counsel for the City of Jacksonville and the sole proprietor of his own law practice which focused on all varieties of litigation. Harry Shorstein will now devote his time to representing individuals and companies investigated for, and charged with, crimes in the state and federal systems, representing individuals and families who have been injured due to the negligence of other individuals or companies, representing businesses in commercial disputes and representing doctors and other professionals who have legal issues in front of licensing and other review boards.

If you have a criminal, personal injury or civil litigation matter in the Jacksonville area, any other area in Florida or even in Georgia (Paul Shorstein is licensed to practice in Georgia) and would like to discuss it with Harry Shorstein or any other member of the firm (consultations are still free), please contact us anytime.

If a Jacksonville Sheriff's Office officer pulls a driver over and suspects that the driver is driving under the influence of alcohol or drugs (commonly referred to as DUI or DWI), the officer will ask the driver to submit to a state administered blood or breath alcohol test to measure the concentration of alcohol in the driver's system. For suspects who do not trust the state administered blood or breath test or who otherwise would like an independent test, Florida law provides that a driver has a right to have such an independent test performed by a hospital, nurse, doctor or laboratory of his/her choosing.

However, keep in mind that the Jacksonville police officer who is investigating a driver for the crime of DUI does not have to, and likely will not, inform the driver that he/she has a right to an independent test. It is up to the driver to clearly and unequivocally make the request for the independent blood test and pay for it. The police officer does, however, have to allow a suspect the opportunity to make the arrangements for the test by providing telephone access. It is unclear whether the police officer has to provide transportation, however, the police officer may not interfere with the suspect's ability to take the test and that may require transportation.

In only four months of this school year, Jacksonville, Florida school officials have found twelve guns in Jacksonville area schools, according to an article on News4Jax.com. As school administrators indicated, they may address this problem by increasing searches of students including random searches of their backpacks, their lockers, classrooms and school buses. Not long ago, we discussed an extreme case of school officials strip searching a young student when they suspected she had Advil in her possession. We discussed that students do have the Fourth Amendment right to be free from unreasonable searches and seizures, however that right is qualified somewhat in the school setting. School officials can search students if it is justified and reasonable and the search does not excessively intrude upon the student as a strip search of a young female student to find Advil clearly did.

Based on Constitutional law, school officials generally could have a right to conduct searches in their schools to make sure guns are not brought into the school. However, whether a search of any individual student is Constitutionally legal would depend on the circumstances of the case and the nature of the search.

A woman who held the position of supervisor at the Department of Children and Family Services ("DCF") was arrested for allegedly stealing money that was intended for recipients of government assistance, according to an article on www.News4Jax.com. She was arrested on charges of grand theft, criminal use of personal information and scheming to defraud according to the article. The total amount of money that was reportedly stolen was approximately $24,000.

This type of theft, which is often categorized as a white collar crime, is committed in Florida when a person takes the property of another for his/her own use without authorization. The penalties for the crime of theft in Florida depend on a variety of factors, including the value of that which is stolen. Where money has been stolen in an amount equal to or greater than $20,000 but less than $100,000, the crime is grand theft which is a second degree felony that carries a maximum prison sentence of 15 years.

As criminal defense lawyers representing a person who has been accused of such a theft or white collar crime, in addition to evaluating the evidence to determine if there is sufficient evidence to prove the defendant committed the crime, it is always important to evaluate the evidence to make sure the amount the state alleges was stolen is accurate and not based on any presumptions or speculation. This could mean the difference between a first degree, second degree or third degree felony or even a misdemeanor and potentially many years in prison and/or on probation.

Most people are familiar with Miranda warnings which warn a suspect that, among other things, he/she has a right to remain silent and a right to an attorney before the police ask him/her questions about suspected criminal activity. If the police are required to give those Miranda warnings and do not and then ask questions of a suspect, the suspect's answers will likely be inadmissible at the criminal trial. However, it is not always clear when the police are required to give Miranda warnings. For instance, are the police required to give the Miranda warnings to a suspect during a routine traffic stop before the officer asks the suspect questions about a possible crime? It depends on the circumstances.

For instance, consider a situation that occurred near Jacksonville, Florida that involved two people racing their vehicles, which is a misdemeanor crime in Florida. A police officer observed the race and pulled both vehicles over. He questioned both drivers, and they both admitted to racing. Both drivers were then given notices to appear in court to answer to criminal charges for racing. The police officer did not give the Miranda warnings to the drivers before asking them questions about the suspected racing crime.

The criminal defense lawyers tried to have those statements thrown out of court because the defendants were not given their Miranda warnings before being asked about the racing. The criminal defense lawyers were not successful. Whether a police officer needs to give Miranda warnings before asking investigative questions of a suspect depends on the nature of the encounter between the police officer and suspect. If it reasonably appears to the suspect that he/she is in custody or is under such pressure that his/her right to remain silent seems compromised, the police officer must give Miranda warnings before questioning the suspect about a crime. However, this is a fairly gray area. Some of the factors that determine whether a suspect is "in custody" are: the length of time of the questioning, the number of police officers involved in the encounter, whether the suspect is handcuffed, placed in the police car or otherwise moved to a different location and whether the suspect was searched. If some of these factors are present, the defendant likely has a good argument that he/she should have been given Miranda warnings prior to questioning and any answers he gave about any criminal activity are inadmissible in court. If, as in the racing case referenced above, the police encounter is more consistent with a normal traffic stop that is fairly brief and involves only a few questions while the suspect has not been constrained in any way, there is a good possibility that any answers he/she gives to police questioning could be used against him/her in court even if no Miranda warnings were given.

Consider a typical DUI traffic stop that often occurs in Jacksonville, Florida. A police officer will see a person commit a driving infraction such as speeding or running a stop sign late on a Saturday night. The police officer pulls the driver over and immediately suspects the driver of being under the influence of alcohol or drugs, perhaps because of the age of the driver, the fact that it is late on a weekend, the fact that there are certain bars or restaurants down the road or any other factors that may bias the officer. From that point on, the police encounter and the decision as to whether or not to arrest the driver for DUI is very subjective. In other words, whether a DUI arrest is made is not based on concrete, objective factors that can later be confirmed in court; rather, the decision to arrest for DUI will often be based on the perceptions, observations, conclusions and biases of the police officer. Just about every police officer that has made a DUI arrest since the beginning of time will report that the suspect had bloodshot and watery eyes, emitted a strong odor of alcohol, had slurred or mumbled speech and failed the field sobriety tests if the driver submitted to them. However, those conclusions are all very subjective. How bloodshot and watery were the driver's eyes compared to what they normally look like? What if the driver was in a smoky bar or staring at a computer screen all day? How strong is a "strong odor of alcohol"? What is slurred speech compared to how a person normally speaks? Over the entire time period of the police encounter, how often must the driver slur his/her speech for it to be considered significant? Is the speech slurred due to alcohol or because the person is nervous? How the officer interprets these questions is very subjective.

The word "bias" is not used negatively here but as a natural and normal psychological phenomenon- a cognitive bias, and it is a significant factor. The human brain is wired to see patterns and draw conclusions subconsciously. While we would hope that a police officer would come to a conclusion only after assessing all of the relevant data, humans have a psychological tendency to draw the conclusion and fit the data to conform to that conclusion. The human brain is also wired to avoid conflict. In other words, if we believe something to be true, i.e. we see something we believe conforms to a pattern we assume exists, we challenge ideas or perceptions that are inconsistent with our belief and automatically accept ideas that are consistent with our belief. The human brain is much happier when ideas and perceptions are consistent.

At a DUI stop, if a police officer believes the driver is under the influence of alcohol, i.e. that is the idea he/she perceives that is consistent with the pattern he/she accepts, the officer may interpret the subsequent evidence to conform to that belief. As a result, these subjective factors like bloodshot and watery eyes, slurred speech, an odor of alcohol and performance on field sobriety tests may be interpreted to be consistent with the idea of a drunk driver rather than what the facts actually illustrate.

To simplify, a police officer may have observed people commit traffic violations late on the weekends who turned out to be drunk hundreds of times or more. That officer, as humans are prone to do, will start drawing conclusions based on that experience. The next time that officer pulls a driver over in similar circumstances, his/her brain relates back to prior drivers who were drunk. The pattern is established. We can all relate to the idea that we like to be proven right and we do not like to be proven wrong. It is intellectually uncomfortable to draw a conclusion only to find out it was incorrect. The defense mechanism our brains use to avoid that state of cognitive discomfort forces our brain to see what we want to see, hear what we want to hear and assume what we want to assume to conform to our primary belief- that the driver is driving under the influence of alcohol- even if the facts tell a different story. It is a psychological phenomenon that cannot be denied. As a result, the officer fits this next driver into the pattern that has developed and may interpret the data from the police stop to conform to that pattern and his/her conclusions.

So, what should you do if you are pulled over by a police officer who suspects you of committing a DUI? Well, you cannot fight the instinctual operation of the human brain. You can, however, limit the information you provide to the police officer that can be interpreted unfavorably against you. After you give your name, license, insurance and/or registration, you can politely ask for a lawyer who is familiar with DUI cases in response to any further questions. Keep in mind that anything you say or do can and will be used against you, and when you are dealing with so many subjective factors that are involved in a typical DUI investigation, the less you say and do, the better.

If you are stopped by police in Jacksonville, Florida, or anywhere else for that matter, and are suspected of driving under the influence of alcohol or drugs, here is a good example of how you would not want to handle that police encounter. Charles Barkley is famous mainly for two things- he was one of the best professional basketball players in the 1980's and 1990's and he was, and continues to be, one of the most outspoken athletes and former athletes. The former characteristic can, at times, get people out of trouble, but the latter characteristic is rarely helpful during a police encounter, particularly when a police officer suspects a person of driving under the influence of alcohol (referred to as a DUI or DWI).

In the early morning hours on New Year's Eve, Barkley was stopped after a police officer reportedly saw him roll through a stop sign. When the police officer activated his emergency lights, Barkley stopped in the road rather than pulling over to the side of the road. The police officer approached Barkley and said he detected an odor of alcohol and observed that Barkley's eyes were bloodshot and watery. The police officer asked Barkley if he had been drinking, and Barkley said, "A couple." The police officer asked Barkley if he would submit to field sobriety tests, and Barkley agreed. The police officer determined that Barkley failed those tests. Barkley also reportedly told the officer that he was in a hurry to meet a girl for oral sex. After the discussion with Barkley and the field sobriety tests, the police officer arrested Barkley for DUI.

Barkley messed up this police DUI encounter in several ways. Keep in mind that everything Barkley did and said that the police officer or the prosecutor believes is evidence that he was impaired by alcohol will be used against Barkley in court. When the police officer engaged his emergency lights, Barkley should have pulled over off of the road rather than in the road. People should know that it is unsafe to stop in the road, and the police and prosecutor will say that his failure to pull over off of the road is a sign of poor judgment, which is a factor in determining if a person is impaired.

A person stopped for DUI should not give evidence to the police officer by telling him/her that he/she has been drinking or how many drinks he/she has had. There is no benefit to a person stopped for DUI to talk to the officer about any drinking that he/she has been doing. There is also no benefit to telling the police officer you are in a hurry to get oral sex at 1:30 in the morning, particularly when you are married as I believe Barkley is. Finally, the field sobriety tests that Barkley submitted to will typically only be used as evidence against a person suspected of DUI. The results of those tests are subjective. In other words, a person suspected of DUI fails those tests if the police officer says so. A suspect may think he/she performed the test correctly, but the officer may decide the tests were failed because they were not done perfectly or in the exact manner the officer expected even though the explanation as to how the tests were to be performed was not thorough.

Basically, when Barkley ran the stop sign, he did something that millions of perfectly sober drivers do every day. Running a stop sign is certainly not evidence of committing a DUI. However, many of the things that Barkley did afterwards can be used against him to support a DUI charge. Failing to pull over properly, telling the officer he had been drinking, talking about being in a hurry to get oral sex, submitting to the field sobriety exams- Barkley did not have to do any of this and could have just requested to speak with a lawyer who is familiar with DUI investigations and prosecutions who could properly advise him. If he had done so, the police and the prosecutor would have had less evidence to work with when arresting and prosecuting him for DUI.