Jacksonville Criminal Lawyer Blog

Every person has a strong Constitutional right to be free from unlawful searches and seizures. This privacy right is strongest in one's residence. The police can only search a person's residence in limited situations, the most common of which are with a valid search warrant and when the person who lives at the residence gives the police consent to search the residence.

When a police officer knocks on a person's door and asks for consent to search, the resident has every right to refuse the search. As criminal defense lawyers in the Jacksonville, Florida area, we continue to be amazed at how often people let police officers go through their homes based on a simple request to search, particularly when the resident has drugs in the house. In any case, people should understand the strong Constitutional privacy right they have in their homes which allows them to refuse a police request to search the home.

On the consent issue, it is not just the owner of the residence who is authorized to give the police consent to search the home. Any person, such as another resident, a roommate or a tenant, who has common authority over the residence is authorized to allow the police to enter and search the resident. Common authority usually involves a person who has joint access to the premises. If the owner of a home has a friend staying at the home for some period of time and that friend has free access to the home, that temporary resident may have authority to allow the police to come in and search the premises. If it reasonably appears to the police officer from the circumstances that the person has joint access to the premises, that person can legally consent to a search of the premises by police even if the homeowner is no around at the time.

In a criminal case just south of Jacksonville, Florida the suspect was driving in his vehicle and playing his music in a loud manner when he was pulled over by the police for a noise violation. The police officer checked the driver's license and learned that it was suspended. When the police officer searched the car subsequent to the arrest, he found a large quantity of cocaine and marijuana in the car. The suspect was then arrested for trafficking in 28 grams of more of cocaine and possession of marijuana.

The criminal defense lawyer for the suspect filed a motion to suppress the cocaine alleging that the search was illegal because the police officer did not have authority to pull the driver over for the noise violation. If the initial stop of the suspect was illegal, then the subsequent arrest of the suspect for driving with a suspended license and search incident to that arrest would be illegal. In that case, the evidence of the cocaine seized after the illegal search would be thrown out.

The criminal defense attorney argued that a person has a First Amendment right to play music loudly and the noise violation was unconstitutional. The Florida noise statute basically says that a person operating a vehicle on the roads cannot play music that can be heard at least 25 feet away from the vehicle. The court agreed that the noise statute was unconstitutional because amplified music is protected under the First Amendment and the noise statute unnecessarily allowed certain types of noise beyond 25 feet while prohibiting others.

So, the criminal defense lawyer was able to successfully argue that the noise statute, which was the basis for the original stop, was an unconstitutional law. However, the court still did not invalidate the search and the evidence of the cocaine and marijuana. The court found that while the police officer's stop of the suspect for the noise violation was an illegal stop, the police officer made the traffic stop in good faith because he had no way of knowing the noise statute was unconstitutional. Even where a search and seizure of a person is illegal because it is based on an illegal statute or another invalid reason, evidence from the illegal search and seizure can still be used in court against the suspect if the police officer conducted the search and seizure in good faith. This is known as the good faith exception, and some courts use it to allow evidence to come in against a defendant even where the criminal defense attorney successfully argues the search and seizure were illegal.

The Florida Contraband Act allows the state to seize and forfeit any property that is used in any way to commit certain crimes or that represents proceeds from certain crimes. The forfeiture law certainly covers motor vehicles used to facilitate any crime referenced in the forfeiture statute.

In a recent case just outside of Jacksonville, Florida, the defendant was stopped for having excessively tinted windows. The driver gave the police officer consent to search his car, and the police officer found a concealed firearm in a pouch attached to the driver's seat of the vehicle. The driver, who did not have a concealed firearms permit, was arrested for possession of a concealed weapon. The police officer went on to seize the car based on that crime, and forfeiture proceedings were initiated by the state.

A person commits the crime of carrying a concealed weapon in his/her vehicle if he/she has the firearm out in the open in a place that is easily accessible. In other words, if the firearm is securely in a case or somewhere out of the driver's reach, i.e. in the trunk, it is not a crime.

In this case, the handgun was concealed, was not secured in a case and was within the driver's reach. Because the driver did not have a concealed weapons permit, he was guilty of carrying a concealed firearm. The next question is whether his car can be forfeited as a result of the crime. Carrying a concealed weapon or firearm is a crime that can result in the forfeiture of property under the Florida forfeiture law. However, the state still must prove the vehicle was used to facilitate the crime. It is not enough to prove that the concealed firearm was in the vehicle. The state must prove the vehicle in some way aided in the commission of the crime. In this case, the court found that the vehicle could be forfeited because the gun was hidden in a pouch that was part of the car. In that way, the car was used to facilitate the crime. If, however, the gun was found in a duffel bag or under some papers, it is unlikely the state could meet its burden to forfeit the vehicle.

In Florida, if a person is convicted of certain sex crimes involving minors, that person is required by law to become a sex offender which means that he/she must comply with the sex offender registration requirements and other rules for the rest of his/her life. These are very burdensome and distressing requirements that typically do not go away. In a criminal case involving sexual conduct with a minor, everything is negotiable, and it is possible to reach a resolution that eliminates the sex offender label with an adjusted criminal charge. However, this stipulation is often a deal-breaker with prosecutors in all but the most minor cases.

We get a lot of calls from people who have been sentenced as sex offenders and want to try and remove the sex offender status. This is unlikely to happen. However, the Florida legislature did add an exception to the sex offender requirement for the applicable consensual sex crimes involving a minor. Under the law, a person may be eligible to have the sex offender or sexual predator status removed if the person has just one qualifying sex crime (whether he/she was convicted or adjudication of guilt was withheld), the sex offender or predator registration requirement is necessary solely based on that one case, the person was not more than four years older than the victim of the crime and the victim was between the ages of 14 and 17 at the time of the crime.

If the person meets these requirements, he/she can file a motion with the court to remove the requirement that the person register as a sex offender or sexual predator. At that point, it is up to the judge to determine if the requirement will actually be removed. But keep in mind that the court will likely strictly interpret the four year age difference requirement. In a recent case near Jacksonville, Florida, a person met all of the requirements for the sex offender exception above except he was four years and three months older than the victim. Because he was more than four years older than the victim, the court denied his motion to remove the sex offender registration requirement.

If you have been convicted or sentenced for a sex crime that requires registering as a sex offender or sexual predator and meet the eligibility requirements discussed above, feel free to contact us for a free consultation to see if the sex offender or sexual predator registration requirement can be removed in your case.

In Florida, the Department of Agriculture and Consumer Services regulates licenses to carry concealed weapons or firearms. That department issues concealed weapons or firearms permits, and they also revoke them for various reasons. If a person has been convicted of a felony in Florida or any other state, that person is not allowed to own or possess a firearm. However, if a person has been found guilty or pled guilty or no contest to a lesser charge, the department may still suspend that person's license to carry a concealed firearm or weapon.

Florida law provides that certain people who qualify may obtain a license to carry a concealed weapon or firearm. The licenses must be carried with the firearm or weapon, and they are good for seven years.

If a person has been found guilty or entered a plea or guilty or no contest to a misdemeanor involving violence, the department will deny an application for a concealed weapons or firearm permit for a period of three years from the time the criminal sentence has been successfully completed. If a person has an existing concealed firearms or weapons permit, the department will suspend the concealed firearms/weapons permit if a person gets arrested and sentenced for a misdemeanor involving violence. That suspension will last at least three years from the time the sentence is successfully completed. The department will also suspend a concealed weapons/firearms permit if the person has an injunction against violence issued against them.

There is an exception to the rule that a concealed weapons/firearms permit is suspended if the person has been sentenced for a crime involving violence. If the crime that suspended the concealed weapons/firearms license has been sealed or expunged, the law states that the concealed weapons/firearms license should not be suspended.

If you have a concealed weapons or firearms permit, or intend to get one, and are facing a crime involving violence, feel free to contact us for a free consultation regarding your rights. Likewise, if you have a prior case involving violence that is preventing you from getting a concealed weapons or firearms license, you can contact us to see if you are eligible to seal or expunge your case and render you eligible to obtain the concealed weapons or firearms permit.

Police in Florida often get tips from people about others who are allegedly involved in criminal activity. Many of these tips relate to people allegedly selling drugs or growing drugs. When the tips come from people who identify themselves to the police, know the suspects and have specific information about the criminal activity, the tips are considered more reliable than tips from anonymous people. When the tip comes from a person who is not willing to identify him/herself to police and discusses alleged criminal activity, this is not sufficient for the police to obtain a search warrant or make an arrest. The police can investigate the matter to see if they can observe facts that verify the tip and the criminal activity. If the police do in fact observe facts consistent with the tip and consistent with criminal activity, they may be able to detain or arrest the suspect. However, if the police observe the suspect and verify certain harmless facts (such as description and location) but not anything indicating criminal activity, the police cannot lawfully detain or arrest the suspect.

In a recent sale of cocaine within 1,000 feet of a park case just outside of Jacksonville, Florida, the police received an anonymous tip that the defendant was selling cocaine at a park with a young child. The police went to the park and saw the defendant and his son. They then saw the defendant walk to the driver's side of another vehicle and then make an exchange of an unknown object for money. At this point, the police arrested the defendant for sale of cocaine within 1,000 feet of a park. They found that he was in possession of money and more cocaine at the time.

The criminal defense lawyer filed a motion to suppress evidence of the cocaine based on the argument that the police officer did not have probable cause to arrest the defendant. The court ruled that the arrest and search were valid. If the police officer had detained the defendant after only verifying that he was at the park with his son, that would not have been sufficient verification of the tip to justify detaining the defendant. Those facts are harmless facts that do not indicate criminal activity is occurring. However, once the police observed what appeared to be a hand to hand transaction, which are common in drug sales, the police did have sufficient corroboration of the tip to detain the defendant and investigate further.

In Florida, a battery where no weapon is used is normally a misdemeanor crime, which means the maximum penalty is one year in jail. A battery against someone not related to the defendant is a serious charge but not normally as serious as a domestic battery charge and certainly not as serious as a felony battery charge. Using a weapon during a battery can certainly raise the stakes for a battery charge and make it a felony punishable by years in prison. Outside of the domestic battery context where a defendant has a prior domestic battery conviction, battery charges are typically going to remain misdemeanors if no weapon or serious injury is involved.

However, there is one type of battery that we see charged fairly often that does not involve a weapon and often does not result in any, let alone serious, injuries to the alleged victim. Battery by strangulation is a third degree felony in Florida punishable by a maximum of five years in prison. One might expect that the battery by strangulation charge requires forceful strangulation and evidence of the victim's inability to breathe for the state to bring those charges. That is not always the case. As criminal defense lawyers working in the Jacksonville, Florida area, we have see quite a few battery by strangulation arrests where, at worst, the defendant merely puts his/her hands on or near the victim's neck. This is not sufficient to maintain a battery by strangulation charge in Florida. The Florida law requires the defendant to impede the normal breathing of the victim or the circulation of the blood of the victim by applying pressure on the neck, nose or mouth and creating a risk of great bodily harm.

The Florida law, as written, seems to require a significant effort to choke, or strangle, the victim. However, we often see police officers arresting a person for battery by strangulation where there is just an allegation that the defendant merely put his/her hands on the victim's neck without evidence of a restricted airway or blood flow or a risk of serious bodily harm. In many cases where battery by strangulation is charged, the state may have overcharged the case and the misdemeanor is much more appropriate than the more serious felony charge, and this type of case must be defended appropriately.

In a recent DUI case south of Jacksonville, Florida, a police officer stopped the defendant for driving out of control and in an abnormal driving pattern. More specifically, the police officer testified that the defendant was driving back and forth in his lane and striking the lane markers. At some point, after driving over to the divided white lines, the defendant abruptly swerved back towards the middle of the lane. However, the driver never drove over into the adjacent lane. The police officer concluded that the driver was impaired and pulled him over allegedly to see if he was fine to continue driving. After the traffic stop, the police officer conducted a DUI investigation, had the driver perform field sobriety tests and arrested him for DUI.

The criminal defense lawyer filed a motion to suppress evidence of the police officer's observations of impairment and the results of the police officer's field sobriety examination. The criminal defense attorney argued that there was no actual traffic violation so the police officer did not have a legal basis to pull over the defendant.

Ordinarily, a police officer may only conduct a traffic stop of a defendant, whether to write a traffic ticket or investigate for a DUI, if the police officer observes the driver commit a traffic violation. However, there are exceptions to this general rule. One exception is referred to as the community caretaker doctrine in Florida. This says that a police officer may stop a vehicle without reasonable suspicion of criminal activity if the officer believes it is necessary to protect public safety. A police officer can stop a driver if he/she observes abnormal driving if there is reason to believe the driver may be ill, tired or impaired and a risk to others on the road. These traffic stops are allegedly unrelated to a criminal investigation, but they can turn into a DUI or other criminal investigation if the police officer observes signs of impairment from alcohol and/or drugs or other evidence of criminal activity.

When a driver is weaving within his/her lane of travel, no traffic laws are being broken. If no traffic laws are being broken, the police officer generally cannot pull the driver over. However, Florida law does allow for an exception where the police officer observes the driver weaving within his/her lane even if there is no immediate threat to other vehicles or pedestrians. If the police officer observes abnormal driving by the driver that he/she reasonably believes could cause a safety hazard to others, the police officer may pull that driver over to investigate whether the driver has some issue preventing him/her from driving safely. If the driver turns out to be impaired from alcohol and/or drugs, the police officer may be permitted to initiate a DUI investigation and arrest the driver for DUI.

In Florida, a DUI charge (driving under the influence of alcohol or drugs) is normally going to be charged as a misdemeanor crime. While the Florida legislature continues to make minimum penalties for DUI harsher, jail time for a misdemeanor crime is limited to a maximum of one year and most people charged with any misdemeanor are not facing anywhere near that amount of jail time, if any. However, if a person has three prior DUI convictions, the state does have the option of charging the fourth DUI as a third degree felony. Third degree felonies carry a maximum penalty of 5 years in prison, and it is not uncommon for someone to go to jail or prison when charged with a third degree felony if he/she has a prior record.

In a recent DUI case south of Jacksonville, Florida, the state charged the defendant with felony DUI because the defendant had three prior DUI convictions. However, the state cannot use just any prior DUI conviction to justify the three prior DUI convictions necessary to charge felony DUI for the fourth DUI. There are restrictions with the use of prior DUI convictions. For instance, if the defendant was facing jail time, could not afford a lawyer and did not have adequate legal representation during the prior DUI case, that prior DUI conviction cannot be used as one of the three prior DUI's necessary to make the fourth DUI a felony.

In this case, one of the defendant's prior DUI convictions went all the way to the mid-1980's. The criminal defense lawyer filed a motion to dismiss the felony DUI charge because the defendant indicated he did not have enough money to hire a criminal defense attorney back then, did not waive his right to a criminal defense lawyer and was not appointed a criminal defense attorney by the court for the prior DUI in the 1980's. Because the prior DUI case was so old, the files were destroyed, and the state was not able to prove that the defendant either had a criminal defense lawyer when he was convicted of the prior DUI or waived his right to a criminal defense attorney in that case. Because the state could not prove the necessary requirements to use one of the the prior DUI convictions, the State was not permitted to charge the fourth DUI as a felony.