Posted On: March 29, 2012

What Do Police Have to Prove About Drug Dog's Qualifications?

In Jacksonville, Florida, we handle a lot of drug cases that arise from an arrest after a drug dog or K-9 alerts to the alleged odor of illegal drugs in a vehicle. In many of these cases, the police officer makes a routine traffic stop and then is suspicious that the person has illegal drugs in his/her car and either has his/her drug dog walk around the vehicle or calls for an officer with a drug dog to come to the scene to have the drug dog sniff the outside of the vehicle. If the drug dog alerts to the odor of illegal drugs from the vehicle, the police officer then thoroughly searches the vehicle looking for the drugs. If the police officer finds drugs, the police use that as an example of the drug dog's reliability. If the police officer does not find drugs in the vehicle, they assume there were drugs in the vehicle but recently removed.

When these cases go to a trial or result in a motion to dismiss the evidence of the illegal drugs by the criminal defense attorney, the police officer who handled the drug dog is required to come into court and explain to the judge or the jury how the drug dog can reliably indicate to the odor of illegal drugs.

However, what exactly the police officer is required to establish with the drug dog is not clear. Criminal defense attorneys have complained that police officers get a free pass when it comes to proving that a drug dog has been reliable in prior cases. When inquiring into a drug dog's prior track record, police officers often testify that when a drug dog has alerted to illegal narcotics in cases where no illegal drugs are found, it only means that the illegal drugs must have been in the vehicle earlier but removed. With that argument, a drug dog can never be wrong when alerting to the odor of illegal drugs.

The United States Supreme Court recently decided to take a look at what the police and the state have to prove to establish the drug dog's reliability sufficient to allow the evidence regarding the drug dog into court. The United States Supreme Court is reviewing a Florida Supreme Court case where evidence of a drug dog's alert to illegal drugs was thrown out. At the trial of the case, the state merely presented evidence that the drug dog was trained and certified at detecting drugs. The Florida Supreme Court held that this was not sufficient to establish the reliability of the drug dog evidence. As with people who provide information about a potential crime, the Court was looking for more information about the drug dog's reliability.

Police must have probable cause to search a person's vehicle without consent. As a result, merely testifying that a drug dog who has been trained and certified alerted to the odor of illegal drugs is not enough to establish probably cause for a police officer to search a person's vehicle. Since there is no uniform standard for training and certifying drug dogs, it is difficult to tell how valuable such training and certifications are. The Court was looking for information about the drug dog's prior performance and the dog's successes and failures.

It is anticipated that the United States Supreme Court will decide what proof is necessary to allow a police officer to search a person's vehicle for drugs based on the indication from a drug dog.

Posted On: March 22, 2012

President Obama's Proposed Budget Increases Funding for Anti-Drug Programs

Despite statements that he intends to decrease the budget deficit and focus less on certain drug crimes, President Obama's proposed 2013 budget actually increases funding for anti-drug initiatives. The war on drugs goes on with seemingly no consideration for its spiraling costs and ineffectiveness in reducing the number of people using drugs. As further indication that the incredibly high cost to success ratio will not likely come down, the proportion of funds going to treatment and prevention versus funds going to law enforcement is not changing much. For every dollar spent on anti-drug initiatives, approximately 60 cents go to law enforcement while only about 40 cents go to prevention and treatment. This is very similar to the federal government strategies under President Bush and President Clinton.

The total amount budgeted for anti-drug programs is $26 billion. This amount is split over a variety of federal departments. For instance, the Department of Justice would get $7.85 billion with the Bureau of Prisons getting an 8% increase from the previous fiscal year.

Obviously several questions are raised by this budget. If we are giving large amounts of money to the same groups in the same proportions with no success year after year, do we think we will ultimately find success by allocating more taxpayer money this way? What might happen if we allocated more money for treatment and prevention as opposed to law enforcement and changed programs and policies accordingly? What do we accomplish by giving more and more taxpayer money to the Bureau of Prisons other than putting more people in jail for drug crimes?

Posted On: March 19, 2012

Florida Highway Patrol Plans to Crack Down on Aggressive Driving

The Florida Highway Patrol has announced intentions to increase efforts to stop road rage incidents and aggressive driving. This should result in more traffic stops which should also lead to more arrests. Aggressive driving typically means following too closely, quick lane changes and speeding. Those actions typically just result in traffic citations that are punishable by a fine, or potentially a license suspension if a driver gets too many within a certain period of time. If the aggressive driving is dangerous enough, in the opinion of the officer, it can become reckless driving which is a misdemeanor crime punishable by jail time. Additionally, many arrests for more serious crimes begin with a seemingly harmless traffic stop. Driving with a suspended license, DUI, possession of various illegal drugs, possession of a firearm by a convicted felon and carrying a concealed weapon are all crimes that are often detected by police after an unrelated traffic stop.

Everyone should be aware of their rights. If a police officer stops you for violating a traffic law, that is not a legal basis to search you or your vehicle. The police officer can always ask you if you will consent to a search and make it sound like a good idea for you to consent to a search. However, everyone should understand that a traffic stop plus a police officer's hunch that you are involved in a crime do not equate to probable cause to search, and you have a right to refuse a request to search you or any of your property.

Posted On: March 16, 2012

Search By Consent is Limited to Scope of Consent in Florida

In Florida, most people understand that the police cannot search a person's home for drugs or other evidence of criminal activity without a valid search warrant or consent from someone with authorization. This privacy right may also extend to a person's front and back yards. While a police officer may walk onto a person's open property to knock on the door and talk about criminal activity, a police officer may not enter gated areas to search without a warrant or consent to search.

In a recent case south of Jacksonville, Florida, the defendant lived at a home that was surrounded by an electric gate. Someone tipped police that he was growing marijuana in his home. The police went to his house and conducted surveillance but did not see any marijuana, marijuana plants or drug transactions. When the defendant exited the house and opened the gate to take out the trash, the police approached him to talk to him. The police asked if they could talk inside the gate. The defendant agreed to talk inside the gate but nothing more. Once inside the gate, one of the police officers spoke to the defendant while another one started searching around the house. The other officer indicated he smelled marijuana in the house. They detained the defendant until they could get a search warrant for the house. With the search warrant, they searched the house and found a large amount of marijuana. The defendant was arrested for trafficking in marijuana.

The criminal defense lawyer filed a motion to suppress the marijuana based on an illegal search. The state argued that the defendant gave consent to enter the premises, the police officer then smelled marijuana and then had probable cause to get a search warrant which allowed them to enter the house. However, the state's argument was rejected. The key issue was the scope of the consent given by the defendant. The defendant only gave the police officers authority to enter the gate to talk. The police officers were not allowed to search the premises. When the officer left the front yard to search around, he exceeded the scope of the consent. Once he did that, any evidence of marijuana he smelled or found was based on an unlawful search. Likewise, the search warrant was only obtained based on the illegal search. Therefore, the search warrant was not valid.

Posted On: March 13, 2012

Defendant Cannot Challenge Illegal Search of His Co-Defendant in Florida

In Florida, if the police conduct an illegal search of a person and find drugs or evidence of other criminal activity, that person can challenge the search and have the evidence thrown out if successful. However, what if the police conduct an illegal search of another person that detrimentally affects the defendant? A defendant does not have standing to challenge the search of another person, or another person's property, because that illegal search does not implicate the defendant's own 4th Amendment privacy rights.

For instance, in a recent criminal case south of Jacksonville, Florida, a police officer was on patrol when he saw suspect, who he previously knew as a drug trafficker, reach into a parked car and hand what appeared to be cash to the defendant, who was in the driver's seat, in exchange for a brown bag. The police officer assumed this was a drug transaction and stopped both the suspect and defendant. The police officer searched them both and found cocaine on the suspect and $1,000 in cash on defendant.

Both of the individuals were arrested on cocaine charges. Defendant's criminal defense lawyer filed a motion to suppress the evidence of the cash found on defendant as well as the cocaine found on suspect. The court denied the motion as to the cocaine found on suspect because defendant did not have the right to challenge the search of another person. A defendant cannot challenge the illegal search of another person even if the evidence found on that other person affects the defendant and produces damaging evidence for the defendant's case.

Posted On: March 10, 2012

Police Officer Brings Marijuana Into Jail, Blames Juvenile and Arrests Him

It is illegal in Florida to bring contraband into a jail or other detention facility. Normally, examples of contraband that bring about this criminal charge include drugs (legal or prescription), cigarettes and other tobacco products and weapons. If a person possesses contraband in, or brings contraband into, a county detention facility, it is a third degree felony crime in Florida, punishable by up to five years in prison.

In a recent case south of Jacksonville, Florida, a juvenile was arrested on an outstanding juvenile pickup order. The juvenile had a backpack with him. The police officer took possession of the backpack and took the juvenile to jail. The police officer never returned the backpack to the juvenile. The police officer took the juvenile and the backpack into the jail. Once inside, the police officer opened the backpack to inventory the contents as is standard procedure. When they searched the backpack, the found less than 20 grams of marijuana inside. The police then arrested the juvenile for the felony charge of introducing contraband into a county detention facility along with misdemeanor possession of marijuana.

The criminal defense lawyer moved to dismiss the felony introducing contraband into the county detention facility charge because the juvenile did not actually bring the backpack containing the marijuana into the jail. The state argued that the juvenile was in constructive possession of the backpack, and the marijuana inside, so that was sufficient to support the charge. A person can be in constructive possession of drugs or other items even if he/she does not actually have the item on him/her. However, constructive possession requires that a person knows the items are present and has the ability to control the items. Presumably, the juvenile knew the marijuana was in his backpack, however he did not have control over it once the police officer took the backpack and arrested him. As a result, the juvenile did not possess the backpack and marijuana and could not be held responsible for bringing the marijuana into the jail.

Posted On: March 7, 2012

In Sexual Battery and Lewd or Lascivious Molestation Cases, Victim's Prior False Accusations May Not be Admissible in Florida

In cases involving illegal sexual contact between an adult and a minor, often brought as sexual battery or lewd or lascivious molestation charges, one issue that often comes up is whether the alleged victim made prior false accusations of a sexual nature against someone else in the past. Anyone charged with a sex crime against a minor might automatically assume that at a trial, the defendant would be able to bring out the fact that the alleged victim previously made similar false accusations against someone else. However, that is not necessarily the case.

In Florida, a witness's credibility cannot be attacked by showing the victim committed prior acts of misconduct unless those prior acts resulted in certain criminal convictions. In other words, the defense cannot tell the judge or jury that the victim did prior bad things (i.e. make a false sexual abuse allegation) if those prior bad things did not result in a criminal conviction. This issue often comes up in the sexual abuse context. For instance, a very common sexual abuse case will stem from a girl accusing a person, a stepfather perhaps, of sexual molestation. Typically, that girl's testimony is the most significant, or only, evidence in the state's case. Her credibility will be a crucial aspect of the case. What if the defendant knew the girl had made a similar prior false accusation against her uncle and had several witnesses to prove it? Can the defendant bring out that evidence at trial? Very likely, no. Unless the girl's prior false accusation resulted in a conviction against her for false report of a crime or some similar crime, which is highly unlikely, the defendant may not be permitted to bring her prior false accusation out in court.

There is an exception if the defendant can prove the prior false accusation is evidence of bias or a motive to lie in the present case. However, this is more likely to be successful if the prior false accusation was against the same person.

Every case is different, and these issues will depend on the particular facts of the case. However, a person charged with a sex crime should not automatically assume his/her criminal defense lawyer can bring out evidence of the alleged victim's prior false accusation in court. It is possible, but it is not automatic like some people may think.

Posted On: March 4, 2012

Operating as a Pawnbroker Without a License is a Felony in Florida

Anyone who wants to own a pawn shop or operate as a pawnbroker must obtain the proper license in Florida from the Department of Agriculture and Consumer Services. A separate license is required for each pawnshop. If a pawnshop changes locations, the pawnshop owner must give 30 days' written notice to the Department so the license can be amended to reflect the new address. A pawnshop license is valid for one year and must be renewed upon expiration.

There are certain requirements which must be met before the Department will issue a pawnbroker's license. Those requirements can be found in the statute here. One requirement is that the pawnshop applicant must not have been convicted of or entered a plea of guilty or no ciontest to a felony or other crime involving theft, fraud or stolen property within the previous ten years.

In a recent criminal case west of Jacksonville, Florida, a pawnshop owner was charged with operationg as a pawnbroker without a license after failing to renew their pawnbroker's license. The pawnbroker did get an initial license for the pawnshop but failed to renew it while still operating the pawnshop. The pawnshop owner was convicted of the charge, which is a third degree felony in Florida, punishable by up to five years in prison.

Posted On: March 1, 2012

The Community Caretaker Exception to a Warrantless Search in Florida

In Florida, the police are generally not allowed to search a person's home for drugs or evidence of other crimes unless the police have a valid search warrant or consent from the owner or someone authorized to give consent to search. There are, however, exceptions to this general rule. One such exception is called the community caretaker exception.

The community caretaker exception allows a police officer to conduct a search in an emergency situation for the limited purpose of protecting the safety of the general public. For example, if the police are patrolling and someone tells them a guy is having a heart attack in his house. If the police go to the house and see the through the window a guy lying on the floor, the police may be authorized to enter the home to help the victim. If the police find drugs on the table next to the victim, the police may be able to seize those drugs and make an arrest for a drug charge. Normally, the police would not be allowed to enter a person's home and seize drugs they find in plain view. However, if there was a valid emergency requiring them to enter a house and the drugs were found as they were responding to the emergency, the search may be valid under the community caretaker exception.

The following is an example of when the community caretaker exception is not a valid exception to the search warrant requirement. In a recent case near Jacksonville, Florida, the police went to the defendant's house to serve an old arrest warrant. Once inside, the police officer saw that the defendant had a young child at the home. They agreed to wait for the defendant's sister to arrive so someone could take the child. When the sister arrived, none of them had the keys to the house. The police officers did not want to leave the house unlocked so the police officers searched the house for the keys. They found the keys in the defendant's bedroom on a table next to some ammunition. The defendant was a convicted felon so it was a felony crime for him to be in possession of a firearm or ammunition.

At the trial on the possession of ammunition by a convicted felon charge, the criminal defense lawyer filed a motion to throw out the evidence of the police finding the ammunition because the police did not have a search warrant to search the house. The state argued the police had a right to search for the keys under the community caretaker exception.

The court threw out the evidence. There must be an emergency for the community caretaker exception to allow a search without a search warrant or consent. Finding the keys to a home is not an emergency, especially when the defendant's sister was there and perfectly capable of searching for the keys without the help of the police. As a result, the possession of ammunition by a convicted felon charge was dismissed.