Jacksonville Criminal Lawyer Blog

Several fence contractors were arrested for fraud in the Jacksonville, Florida area, according to an article on Firstcoasnews.com. The allegations are that the contractors took money from the victims but failed to perform the requested work.

When the state prosecutes contractors for fraud, these cases are not as clear as they may seem to the police and the prosecutor. When a contractor accepts money to do a job and never returns, that is one thing. However, because of the way the contracting business works, there are often unavoidable delays and other issues that can prevent a contractor from beginning work when he/she originally planned. Other times, a contractor performs the work, but the client is not satisfied or the client and the contractor had different ideas as to what work was to be done and how. The client may go to the police and claim fraud, but these kinds of cases are more appropriately left to the civil courts. Sometimes, there is a dispute over money that also is not criminal. For instance, the job may cost more than the contractor initially estimated or the client does not pay the installments in time. This may result in a delay in the job. That does not mean a crime has been committed, but rather a difference of opinion that should be resolved outside of the criminal courts.

We have seen many criminal prosecutions of contractors. Some are warranted based on clear fraud committed by the contractors. But other times, there is an honest dispute between contractor and client that should be resolved informally or by a civil lawsuit.

In a recent drug case south of Jacksonville, Florida, the defendant's drug charges were thrown out after the court ruled that the police officer was not authorized to enter the defendant's home and any drugs that were found in his home were illegally seized.

In this case, police officers responded to a call of several people trespassing at an apartment complex. The police arrived and saw several people at the complex. The police approached the group and started to ask questions about what they were doing there. Rather than stay around and answer questions, the defendant walked away from the police and into his apartment nearby. One of the police officers followed the defendant into his apartment and saw him drop some bags containing marijuana and cocaine. The defendant was then arrested for possession of marijuana and possession of cocaine.

However, these charges were thrown out and the case was dismissed because the police officer did not have authority to enter the defendant's apartment.

Let's analyze this case from the beginning so people understand what the police and a citizen can and cannot do. First, a police officer is permitted to approach anyone and ask anyone questions as long as the officer does not detain the person(s). Of course, in that scenario, a person is free to walk away and refuse to answer a police officer's questions. Unless the officer can point to specific facts indicating the person is committing a crime, the officer cannot detain a person and prevent him/her from walking away. If the person does walk away, as in this case, the police officer may not follow him into his home. A police officer can only enter a person's home in three general circumstances: 1) the homeowner gives the police officer consent to enter the home, 2) the police officer has a search warrant to enter the home or 3) there are emergency, or exigent, circumstances authorizing the police officer to enter the home.

In this case, none of those exceptions applied. The State argued that there were exigent circumstances allowing the officer to enter the defendant's home. That argument failed. A person enjoys the strongest protection from unreasonable searches and seizures in his/her home. In order for a police officer to enter one's home based on exigent circumstances, at a minimum, the police officer must establish that there is a grave emergency and there are specific facts indicating the defendant is involved in criminal activity and/or there is evidence of illegal activity in the home that must be recovered right now and cannot wait for a search warrant. A general suspicion of illegal activity is far from sufficient to allow a police officer to enter someone's home without a search warrant.

Federal judges testified in front of the U.S. Sentencing Commission regarding the abnormally high sentences given for the federal crime of possession of child pornography. The judges asked the Commission to review the criminal sentencing guidelines for possession of child pornography cases. The judges noted that some people are getting inordinately high sentences for sitting in their homes looking at pictures of child pornography that are the same or more than sentences for crimes such as rape and bank robbery. Additionally, the judges noted that people who are convicted of possession of child pornography crimes are receiving sentences that are no less than those for people convicted of manufacturing or commercially distributing child pornography. As a point of reference, one judge noted that in his district, the average sentence for possession of child pornography increased from 50 months to 109 months from 2002 to 2007.

The judges indicated they were not trying to downplay the seriousness of possession of child pornography but were merely trying to ensure that the sentencing guidelines for that crime were appropriate when compared to more serious and violent crimes and also more threatening child pornography crimes such as manufacturing and/or distributing child pornography. The U.S. Sentencing Commission appeared to be receptive to the testimony and may consider adjusting the sentencing guidelines for possession of child pornography crimes in federal court in the future.

The Florida Statewide Prosecutor's Office issued its annual report for 2008. That office prosecutes crime throughout the state of Florida. It has several offices statewide, including an officer here in Jacksonville, Florida.

Among the issues raised in the report was the increasing gang problem in Florida. The report noted that Florida has the fastest growing gang problem in the United States, and gangs are branching out into rural areas. The report also indicates that there is increased illegal drug activity in the Central Florida and North Florida areas. In addition to the normal cocaine and crack cocaine, methamphetamine and heroin crimes they deal with, they are seeing an increased number of hydroponic marijuana cases. And just like the federal authorities, the Statewide Prosecutor's Office is focusing more on fraud related cases such as mortgage fraud, health care fraud and securities fraud. Florida was number one in single family home loan fraud cases in 2006 and 2007.

The report is a good source to identify some of the trends in criminal law on the state level and to also see where the local law enforcement and prosecutors' offices are channeling their resources to fight various crimes.

In a recent case south of Jacksonville, Florida, the police got a call of a suspected burglary at the house next to the caller's house. When the police arrived, they found the defendant moving items from the house to a car parked next to the house. The front door to the home showed signs consistent with a break-in. The police determined that the defendant was the suspect about whom the neighbor called. Additionally, when the police arrived, the owner of the house was present standing on the front porch. The defendant was the husband of the homeowner.

The police officers arrested the defendant and then walked in the house to search it without getting consent from the owner. The officers referred to this search as a protective sweep search. The police officers opened a closet and found a large amount of marijuana inside. The defendant was charged with trafficking in cannabis, or marijuana.

The defendant's marijuana trafficking charge was ultimately dismissed because the police conducted an illegal search. The criminal defense lawyer for the defendant filed a motion to dismiss the marijuana evidence because the police did not have a right to enter the house.

A person's home receives the highest privacy protection in the Constitution. Police can only enter and search a person's house if they obtain consent to search, have a valid search warrant or are faced with an emergency, aka exigent circumstances. In this case, the police and the State tried to argue that the potential burglary scenario provided the exigent circumstances justifying the entry into the house and the search. However, the court disagreed and found that the police did not have a legal right to enter and search the house.

When a person is arrested, the police may have a right to search the immediate area around the suspect to make sure there are no threats to the police officer. However, a police officer may not arrest a person just outside his house and use that as an excuse to go into the house without a search warrant or specific facts indicating there is an emergency necessitating an entry into the house. In this case, the police had the burglary suspect detained, and the owner of the house was present. There was no apparent emergency that authorized the police to enter the house and search it. As a result, the search was illegal, and any evidence found in that house could not be used against the defendant in the trafficking in marijuana case.

There are situations when a police officer responding to a possible crime can enter a house without a warrant or consent. For instance, in one previous case, the police were responding to a burglary call and saw the screen door kicked out and the lock broken. The residents did not appear to be home. In that case, the police were authorized to enter the home and investigate what appeared to be a burglary. If they happened to find marijuana or other illegal drugs in the house while investigating the burglary, this evidence could very well be admissible in court.

In order to successfully prosecute a defendant for the crime of DUI (also referred to as driving under the influence, driving while intoxicated, DWI or drunk driving), the State has to prove that the defendant was the actual person driving the vehicle. In most DUI cases, that is obvious because the DUI investigation and arrest result from an alleged traffic violation committed by the defendant who is in the process of driving the vehicle. However, many DUI investigations and arrests result from traffic crashes where the police officer arrives to the scene after the crash. In this case, the police officer does not have personal knowledge that the defendant was driving. If there are other people involved in the crash, they may or may not be able to say that the defendant was driving depending on what they were able to see, whether they were seriously injured or other factors. In a one vehicle crash, it is likely that there are no witnesses to testify as to who was driving other than the defendant him/herself.

In Florida, we have what is called the accident report privilege. This law provides that when a person is involved in a traffic crash in Florida, he/she is required to talk to the police and say what happened in the crash. However, what that driver says cannot be used against the driver in a criminal case, such as a DUI case, or a civil case for personal injuries or wrongful death. So, if the only evidence a police officer and the State have in a DUI case to prove that the defendant was the one driving is the defendant's own statement that he/she was driving, that cannot be used against the defendant to prove the DUI case.

In a DUI case in Florida, the fact that the defendant was driving seems like an obvious element for the State to prove. However, in some cases where an accident occurred, it can be a very difficult element for the State to prove and one that can result in the DUI charges being dropped.

As we have discussed several times on this blog, the federal authorities are focusing more on fraud related crimes, or so called white collar crimes. We have seen the greatest concentration of federal investigative resources go towards mortgage fraud cases recently, particularly in Florida. However, they are looking at fraud cases of all types.

In Kingsland, Georgia, a recent criminal investigation resulted in the indictment of the former owner of the Cisco Travel Plaza and several others connected to that business. The indictment alleges that these individuals committed the crimes of fraud, conspiracy, bribery and/or criminal trademark infringement. Specifically, the law enforcement authorities, which included the FBI, GBI, local Kingsland police and the IRS, are alleging that Mr. Cisco and the others miscalibrated the fuel pumps at three Cisco Travel Plaza locations to provide less fuel than what was indicated and paid for, substituted cheaper fuel at the premium and mid-grade fuel pumps, sold non-BP fuel while using the BP logo at the centers and bribed Georgia Department of Agriculture inspectors who came to inspect the centers and the pumps. The indictment alleges that these offenses occurred between 2005 and 2006 and resulted in a loss of $7 million to customers of Cisco Travel Plaza.

During the course of a DUI investigation, the police officer will often request that the driver submit to a breath test, aka breathalyzer. If the driver agrees to submit to the breathalyzer test, there are certain rules the police officer must follow for the breath test to be valid. When a person gets arrested for driving under the influence of alcohol ("DUI") in Florida, the Department of Highway Safety and Motor Vehicles ("DMV") will automatically suspend the driver's license. This suspension is independent of the criminal case and the potential suspension that is part of a criminal sentence.

A person arrested for DUI in Florida has a right to challenge the DMV's license suspension through a formal hearing. At that hearing, the criminal defense lawyer can raise certain issues relating to whether the stop of the driver was legal, the police officer had reason to arrest the driver and the breath test was valid.

One of the rules relating to breath tests referenced above is the 20 minute observation rule. If the driver agrees to the breathalyzer test, a police officer must observe the driver for at least 20 minutes prior to administering the breathalyzer test. The purpose of this rule is to make sure the driver does not ingest anything by mouth or throw up which would alter the breath test results. Once a police officer has confirmed that the driver has neither taken anything by mouth or vomited for a continuous 20 minute (or more) period, it is proper to administer the breathalyzer test.

In one Florida DUI case, the surveillance camera in the area where the breathalyzer test was administered showed that the driver went into the bathroom unescorted for two minutes during this 20 minute observation period. The police officer tried to claim that she watched him for the full 20 minutes, but the video proved this to be false. Because there was a two minute period where the police officer could not say exactly what the driver was doing, the subsequent breathalyzer test results were invalidated, and the driver's suspension was reversed.

Shorstein & Lasnetski was called by a client who had been arrested a few counties south of Jacksonville, Florida for possession of marijuana. The client was at his home on his back porch. A police officer was responding to a noise complaint made by the client's neighbor about the client. The police officer knocked on the front door, and no one answered. The police officer said that he heard voices around back so he walked around the house into the backyard. When he was in the backyard, he saw our client and some marijuana on a table near our client. Our client was arrested for possession of that marijuana.

This was clearly a bad search. After we filed our Motion to Suppress the marijuana seized as a result of the illegal search, the prosecutor agreed with our position and dropped the case. The reason this was an obviously illegal search is because a person has a strong privacy interest in his/her home and that includes the backyard. A police officer may not walk into a person's home or walk around a person's home into the backyard without a search warrant or a clear exception to the search warrant requirement such as consent or exigent circumstances. In this case, the police officer did not have a search warrant or consent to search, and an investigation into a noise complaint would not establish exigent circumstances.

Because the police officer did not have any right to walk behind his house into his backyard and violate our client's privacy rights, any marijuana he found as a result of the illegal search was thrown out and the possession of marijuana charge could not stand.

We see many cases where the police find illegal drugs near a person or group of people or in a house or car owned by someone and charge one or more people with possession of those drugs. For example, the police may go to a apartment or hotel room that is and has been occupied by several people and find illegal drugs. When no one admits to owning the drugs, the police arrest everyone in the room or house in the hopes that some of the charges will stick. The fact of the matter is that the police and the state must be able to show that a person had knowledge of the drugs and exercised some control over the drugs. Without those two elements, a charge of possession of drugs will fail.

In a recent criminal case near Jacksonville, Florida, police went into a hotel room occupied by two people. The defendant was arrested for carrying a concealed weapon. The police found a set of keys on a table in the room. The police officer asked the defendant to whom the keys belonged. The defendant said they were his keys and agreed to a search of his vehicle, according to the police officer. The police officers searched the vehicle and found a black bag on the passenger floorboard that contained a large amount of methamphetamine. The evidence indicated that the defendant and another guy arrived at the hotel in the vehicle together, and the defendant then admitted he knew about the methamphetamine.

The defendant was charged with trafficking in methamphetamine, and that charge was ultimately thrown out. While the evidence may have proven that the defendant knew about the methamphetamine, the drugs were not found on, or immediately near, him. They were found in a vehicle occupied by at least one other person. Because the state could not prove that the defendant had some control over the methamphetamine at some point, there was insufficient evidence to prove that he was in constructive possession of the drugs.

When police find illegal drugs in a vehicle, house, apartment, hotel room, on the ground, etc., it is not uncommon for them to arrest the person or persons who are in the general vicinity. However, unless someone actually admits to ownership of the drugs, if the state cannot prove that someone had knowledge and control over the drugs, there should not be enough evidence to support a conviction for possession of drugs.

There has been a significant increase in the number of women who have been arrested and convicted for DUI in the Jacksonville, Florida area according to a study and interview reported at www.News4Jax.com. The article cited a study that indicated the percentage of women pulled over and arrested for driving under the influence of alcohol or drugs (also referred to as a DUI, a DWI or drunk driving) has increased almost 30% between 1998 and 2007 (the article does not indicate what area these numbers cover). A member of the State Attorney's Office for the Jacksonville, Florida area also confirmed that they have noticed an upward trend in the percentage of women defendants who have been arrested and charged with DUI, particularly in the more serious cases such as DUI manslaughter when the DUI was allegedly related to an accident that resulted in a death.

Another DUI trend noted by the Jacksonville, Florida prosecutor is the increase in DUI arrests related to drugs as opposed to alcohol. A person can be arrested for driving under the influence of illegal drugs or prescription drugs just as he/she can be arrested for driving while intoxicated.

However, despite the increase in women arrested for the crime of DUI, men are still arrested for DUI at a much higher rate than women.

The article linked here discusses the various laws addressing sex crimes and dealing with sex offenders and the people who are required to register as a sex offender. The article makes several good points. One point is that the laws punishing "sex offenders" and the laws labeling someone a "sex offender" triggering the sex offender registration requirement are too broad. As a result, given the limited resources of the police and prosecutors, it makes it more difficult for them to monitor and focus on the truly dangerous sex offenders. For instance, the article notes that in some states, sex offenders include a woman who had oral sex with another guy decades ago when she was 17 and the boy was a couple of weeks shy of his 16th birthday, and they were in the same high school class. In other states, people were considered sex offenders for soliciting prostitutes, urinating in public and having consensual sex with a teenagers when they were teenagers themselves. As the article mentions, part of the problem is that when a sex offender law is proposed, even when it is over-reaching and includes people doing things that are far less serious than what one would normally consider a sex offense, it is always unpopular for politicians to vote against such laws. It is always popular with constituents to be tough on sex crimes, and no politician wants to risk being called soft on child molesters, even if he/she merely thinks a proposed law is too harsh on a 17 year old who has consensual sex with 15 year old. However, the best approach to sex crimes and sex offenders is to be tough but smart. Categorizing people as sex offenders who clearly do not deserve the label does not do anyone any good.

Florida has strict laws addressing what sexual conduct between people is considered a crime, some of which address sexual conduct between young people pretty close in age. Florida also has strict laws about when, where and how a person is required to register a sex offender, whether he/she is a resident of Florida or just a visitor. If you have questions about the laws dealing with sexual battery, registering as a sex offender and other sex crimes, feel free to contact us for a free consultation.

Several times we have written posts about the shifting priorities of the FBI and federal prosecutors in the Jacksonville, Florida area and throughout Florida, from immigration and terrorism related cases years ago to securities fraud to mortgage fraud. It seems you can follow the latest sensational crime and economic stories to see where federal prosecutors are going to focus next. Recently, the failing housing market and increasing foreclosure rates have inundated the news. As a result, we wrote that the FBI and federal prosecutors are allocating significant resources to investigating, indicting and prosecuting mortgage fraud cases. We also noted that the state of Florida seems to be the focal point for mortgage fraud cases.

We do not expect the trend towards more mortgage fraud prosecutions to change any time soon. A recent FBI report noted that mortgage fraud is getting worse, and the Obama administration has made mortgage fraud cases a top priority. In fact, mortgage fraud cases have become such a priority that certain members of Congress have expressed concern that other white collar crimes may not receive the attention from the FBI and federal prosecutors they deserve due to the classic limited resources problem.

Reports of mortgage fraud by lenders increased 36% in 2008, and financial institutions estimate that they lost $1.4 billion in 2008 due to mortgage fraud, a 83% increase from 2007. With numbers like those, it is no surprise that the government is allocating significant funds for law enforcement to use to combat mortgage fraud. As a result, we should see more federal mortgage fraud cases in the Jacksonville, Florida area and throughout Florida in 2009 and beyond, at least until the next major trend takes over.

In order for a criminal defense attorney to properly defend a person or corporation who is being investigated for or has been charged with a mortgage fraud crime, it certainly helps to have experience in the area and specialized knowledge of the mortgage business. If you have any questions about mortgage fraud or a pending mortgage fraud case, feel free to contact us for a free consultation.