Jacksonville Criminal Lawyer Blog

In Florida, the police are not authorized under the Constitution to stop a person based merely on a tip that the person has a concealed weapon. Consider a criminal case that was decided recently where a person sees the defendant in a restaurant flashing his gun by lifting his shirt and showing the gun in his waistband. That person finds a police officer and tells him that the suspect is flashing a gun in public. The suspect was not, however, pulling the gun out, waiving it or threatening anyone. The police officer then proceeds to stop the suspect, seize his gun and arrest him for carrying a concealed weapon without a permit.

Is this a valid arrest in Florida? No. The key to understanding why this was an improper stop and an improper arrest is the law that a person is allowed to carry a concealed gun or other weapon with a permit. Because of that law, the mere fact that a person has a gun in public does not mean he/she is committing a crime. Therefore, when an informant or police officer sees someone with a handgun in public, that is not evidence of a crime, assuming that person is not waiving the gun around or threatening anyone with it. Because there was no evidence of a crime, the police officer was not justified in stopping and arresting the suspect. If the police officer somehow knew before the stop that the suspect did not have a permit for the concealed gun or saw the suspect threatening someone with a gun, that would be evidence of a crime and a valid basis for a stop. However, mere possession of a concealed weapon is not evidence of a crime. It is not up to the suspect to prove he/she has a permit for the concealed weapon once he/she's been stopped, it is up to the police to establish specific facts indicating a crime is taking place before he/she stops the suspect.

The government has established a new task force called the Financial Fraud Enforcement Task Force which is designed to investigate and prosecute major financial crimes, according to a Department of Justice press release. The agencies that are part of the new task force will focus primarily on the areas of mortgage fraud, securities fraud and corporate fraud. The task force is a collaboration of a variety of different agencies that work in those fields including the Department of Justice, the Department of Labor, the Securities and Exchange Commission, the FBI and many others along with state and local law enforcement agencies as well.

Although a similar task force was created in 2002 (which was replaced by this one), the logical result of this will be more investigations and prosecutions of so-called white collar crimes, particularly in the area of mortgage fraud. Florida is commonly seen as one of the states, if not the state, with the highest number of mortgage fraud complaints and investigations.

A player for the Atlanta Falcons was arrested for possession of more than one ounce of marijuana, which is a felony in Georgia, according to an article on Espn.com. According to the article, Jonathan Babineaux was pulled over for having an expired tag and no tag light. The officer then smelled marijuana and searched the vehicle, presumably after getting consent from Babineaux. He found a bag with over one ounce of marijuana inside.

Babineax basically invited an arrest for felony possession of marijuana. The police officer listed at least two reasons for stopping Babineaux- an expired tag and no tag light. When a person's tag is expired, a police officer is authorized to stop the vehicle at any time regardless of whether the driver is violating any traffic laws. Likewise, if the tag light is out and the police officer is unable to see the numbers and letters on the license plate, the police officer can also pull the driver over for that reason. Once the police officer approaches the vehicle and indicates he smells marijuana, he is probably going to ask to search the vehicle. Why people with a big bag of marijuana or other drugs in the car agree to a police officer's request to search that vehicle is a mystery, but it happens often. People should just be aware that police officers do not have a blanket right to search vehicles, homes or one's person based on a suspicion of drug or other illegal activity. And if a police officer asks a person to search him/her, the vehicle or anything else belonging to that person, that person always has a right to refuse.

More and more states are considering making a relatively new substance illegal. The substance, which is called Salvia, looks like a mint leaf and comes from Mexico. The substance is consumed either by smoking the plant or chewing a paste made from the plant. When taken, Salvia produces psychoactive effects, the potency of which depends on your weight, how much you take, the strength of the Salvia, how you take it and other factors. Some people experience vision altering effects, a dream-like effect, confusion, loss of awareness, a floating sensation, loss of physical coordination and/or many other effects.

There are four states that have recently passed laws that consider Salvia a drug and make possession illegal just like marijuana, cocaine, heroin and other illegal drugs. Florida made selling, using or possessing Salvia illegal in 2008 and classifies Salvia the same as drugs like marijuana and LSD.

There are websites out there that sell Salvia just like any other plant because it is legal in many states. The plant has actually been around for many years and was used by the native Indians for a variety of purposes. However, its popularity and recreational use today are fairly new. Keep in mind that if you are in Florida, it is illegal to have or use Salvia and there can be serious penalties for someone arrested for possession of Salvia.

After the Bernie Madoff debacle, Ponzi schemes are getting more publicity in the news. Ponzi schemes can be committed in different ways, but they typically involve a person or persons who are able to elicit trust from others who believe that person has the ability to make extraordinary returns on an investment. The Ponzi schemer will solicit money from a number of people and use those new payments from newer victims to pay prior victims just enough to keep them satisfied and avoid suspicion. However, invariably, the Ponzi schemer runs out of new investors, and money, or an investor gets suspicious and starts asking questions and requesting documentation about the investment and the Ponzi scheme falls apart.

In this case, Reed Diehl, who was a former Tennessee Titan in the NFL, solicited money from victims claiming that he would invest the money into loan programs and condominium projects in Mexico that would provide a high rate of return, according to a press release on the local U.S. Attorney's Office's website. When the Ponzi scheme fell apart, Mr. Diehl was ultimately charged with federal crimes such as wire fraud and money laundering. He entered a guilty plea and admitted to stealing over $5 million. There were never any investments in loans or building projects. Mr. Diehl was sentenced to 57 months in federal prison in California.

Law enforcement officers in the Jacksonville area and throughout Florida are cracking down on people who are stealing vehicles to change their identity for resale or to strip them for parts or scrap metal. The Jacksonville Sheriff's Office (JSO) recently arrested six people in Jacksonville who are accused of stealing cars and buying stolen cars to break them down for parts or sell them for the scrap metal, according to an article on News4jax.com. The arrests were part of a specific effort to crack down on people stealing cars for this purpose.

The Florida legislature has also been involved in addressing the issue of stolen cars. A new law was recently passed which made it illegal for salvage companies and others to salvage a car for scrap metal or strip it for parts without the title to the vehicle. In the past, people could sell old cars to salvage yards without the title, and the salvage yards would break the cars down or crush them and sell the parts or the metal. Requiring the person selling the vehicle to the salvage yard to provide the title to the vehicle presumably lends some legitimacy to the transaction and helps prevent people from quickly selling stolen vehicles to the salvage company, although fake titles are fairly common and many people keep their titles in the glove compartment.

Apparently, Jacksonville police also used Craigslist as a way to investigate this crime by going after people who advertised that they would buy old cars without requiring the title. Such advertisements are now against the law due to the recent change in the law.

Most people understand that the Florida Constitution and the U.S. Constitution protect us from unreasonable searches and seizures. That means the police and other law enforcement agencies in Florida cannot search our homes, vehicles, etc. and seize our property without consent, a search warrant or emergent circumstances. However, the law is different regarding controlled substance records at pharmacies.

Florida law says that pharmacies are required to maintain drug records for at least two years. Pharmacies are also required by Florida law to make those controlled substance records available to law enforcement officers without the need for a search warrant, subpoena or other court order. Additionally, the police can obtain controlled substance records from pharmacies without notice to the patient from either law enforcement or the pharmacy. In other words, police in Florida are permitted to go to your pharmacy and obtain your controlled substance prescription records without a warrant and without you knowing about it.

This primarily comes up in two types of cases. Obtaining prescription drugs, such as Vicodin, Percocet and Oxycontin, by fraud is becoming more prevalent these days as we have pointed out on this blog in the past. Doctor shopping, where a patient may go to several doctors to get the same or similar prescriptions, is also fairly common. When the police investigate such crimes, they may go to the pharmacy for a suspect's records. Florida law allows them to obtain such information more easily than other evidence in other types of crimes.

Five people were arrested for allegedly growing high potency marijuana in a house in Waycross, Georgia, which is about two hours northwest of Jacksonville, Florida, according to an article on News4Jax.com. They also reportedly stole electricity from power lines to power the lights needed to operate a marijuana grow house.

We have written a few times on this blog about the increasing number of arrests of people growing marijuana indoors in grow houses that use special equipment to grow the marijuana. Of course, that special equipment requires a significant amount of power to operate. This additional electricity use can help police track this kind of activity when they search electricity records and see an inordinate amount of power going to a particular location. Police may use electricity records and other information to obtain search warrants for the home where the marijuana plants and grow equipment are located.

In this case, when police discovered that power was being diverted to the house, it alerted the police to the possibility that marijuana was being grown inside. And because the power was being stolen, it gave the police the right to investigate that crime and any others that were taking place in the home.

Each of the five individuals were charged with trafficking and manufacturing marijuana and theft.

Star defensive player Carlos Dunlap was arrested for driving under the influence of alcohol (DUI) this week just days before the SEC championship game, according to an article on Gatorsports.com. The article indicates that Gainesville police received a call of a reckless driver and found Dunlap stopped at an intersection where the light was green. The police officer approached Dunlap in the vehicle and saw that he appeared to be sleeping at the wheel. The police officer indicated that Dunlap's breath smelled of alcohol and he had bloodshot, watery eyes. Once Dunlap exited the vehicle, the officer said he had difficulty maintaining his balance and did poorly on the field sobriety tests. Dunlap was then arrested for DUI.

There are a few issues that are raised by this kind of traffic stop and DUI. Police officers are not permitted to stop a driver based on an anonymous tip that the driver is violating the traffic laws. However, the police officer can investigate further and locate the suspect. If the police officer then corroborates the tip with his own observation of a traffic violation, he can make a traffic stop on the driver. Being stopped at a green light is not necessarily a traffic violation, however, if the driver remains stopped after the light turns red and green again a few times, the police officer may have a right to investigate further. Additionally, in this case, Dunlap was not driving when the police officer found him. However, the keys were apparently in the ignition and the car was on. Under these circumstances, the state could legally charge Dunlap with DUI even though the car was not actually moving.

A Florida trafficking in cocaine case was recently thrown out due to the illegal search by the police officer. In this case, the police officer responded to a domestic battery call where the suspect was possibly armed with a handgun. The police officer saw the suspect near the apartment and called to him. The suspect ran and was caught near a vehicle that supposedly belonged to him. The police officer arrested the suspect and searched him but found nothing. After the suspect was placed in the patrol car, the police officer searched his vehicle and found a trafficking amount of cocaine.

The criminal defense lawyer for the suspect filed a motion to suppress alleging that the search of the defendant's vehicle where the cocaine was found was illegal. The judge agreed and threw out the evidence of the cocaine.

The law has changed on this issue recently. In the past, the police officer could always search a person's vehicle if he/she is arrested near that vehicle, for instance during a traffic stop. However, now, if a person is arrested near his/her vehicle but at the time of the arrest has been secured and is not within arm's reach of that vehicle, the police officer does not have an automatic right to search the vehicle. In other words, if the suspect has no way of getting into his/her vehicle, there is no officer safety issue and the police officer cannot just search it automatically. If the officer has reason to believe that there is evidence of the crime for which the suspect has been arrested in that vehicle, then the officer may have a right to search it. But, the police officer's search is no longer automatic when a person gets arrested at or near his/her vehicle. If the police search the vehicle of someone who has been arrested and secured without specific facts suggesting there is evidence in that vehicle, any evidence of a crime found in the vehicle should be thrown out.