Jacksonville Criminal Lawyer Blog

Criminal defense lawyers often file what are called Motions to Suppress to try and keep out evidence that the prosecution is attempting to use against a defendant in a criminal case when the criminal defense attorney believes the police were not justified in stopping the defendant and/or seizing the evidence. The Fourth Amendment protects people from unreasonable searches and seizures and can be used to prevent the prosecution from using evidence against a defendant in a criminal case if the court finds that a search or seizure was unlawful.

A recent criminal case out of Jacksonville, (Duval County) Florida does a good job of explaining the difference among the three categories of encounters with police. The first level of police encounter is a consensual encounter that involves minimal police contact and where the other person is free to comply with police or leave the encounter at any time. The second level of police encounter is often referred to as an investigatory stop where a police officer can detain a person temporarily if the police officer has a reasonable suspicion that the person has committed, is committing or is about to commit a crime. The police officer must be able to point to specific facts that are the basis for this reasonable suspicion of criminal activity. The third level of police encounter is an actual arrest where the person is detained and removed from the scene. This level of police encounter requires the higher standard of probable cause that a person has committed, is committing or is about to commit a crime.

In the recent case, the Jacksonville Sheriff's Office (JSO) officers were called to investigate a burglary of a vehicle. When the Jacksonville Sheriff's Office officers arrived, one of them heard a possible witness say the suspect was a white male who ran into the woods. No other description was given. The Jacksonville Sheriff's Office officers searched the woods and found a CD player that may have been taken in the burglary and then some distance away found the defendant lying on the ground. The defendant was handcuffed, placed in a patrol car and driven back to the scene of the crime where he was identified by a witness.

Clearly, this encounter was a third level encounter since the defendant was handcuffed and moved from the location where the JSO officers found him. The court found that the officers had a reasonable suspicion to briefly detain the defendant and investigate the burglary further, but with only a vague, general description of the suspect, the JSO officers did not have probable cause to execute a full arrest of the suspect. As a result of the finding that the arrest was not legal, the subsequent identification of the defendant was thrown out and could not be used against the defendant in court.

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Posted In: Drug Crimes , Search and Seizure

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Three Jacksonville, Duval County, Florida women were recently arrested for the crime of prescription fraud according to www.Firstcoastnews.com. The three Jacksonville women are alleged to have obtained popular prescription drugs such as Oxycontin, Hydrocodone and Xanax worth over $50,000 illegally. According to a Jacksonville Sheriff's Office report, the women allegedly used the insurance information of others and forged doctors' prescriptions to obtain the drugs from CVS Pharmacy. Due to the large quantity of the prescription drugs, Jacksonville Sheriff's Office officials believed that the prescription drugs were obtained for resale, rather than use.

As discussed previously on this Jacksonville Criminal Lawyer Blog, abuse of prescription drugs is becoming increasingly popular along with corresponding arrests for the crimes of prescription fraud and possession of illegal prescription drugs. This dangerous trend has become particularly more popular among kids.

Illegal use of prescription drugs, such as Oxycontin, in Florida has had serious effects. According to the Florida Department of Law Enforcement , through the first half of 2007, the drugs that caused the most deaths to Florida residents were prescription drugs. The Florida death toll from prescription drugs has risen since 2001. However, Florida is one of fifteen states that does not have a system in place to try to track the disbursement of prescription drugs. In addition to what was alleged in this Jacksonville, Florida case, one common way people obtain large quantities of illegal prescription drugs is by what is referred to as "doctor shopping." This involves taking a prescription to various doctors who are not aware that the person already obtained the prescription drug previously from a separate doctor. Many states have a system in place to monitor when a person submits a prescription and obtains the drugs, but Florida currently does not.

The Florida law prohibiting prescription fraud can be located here. (Florida Statutes § 893.13). It is a third degree felony crime.

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Posted In: Drug Crimes

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A recent Florida criminal case involving the search of a student in whose wallet marijuana was found illustrates the standard for properly searching a student for drugs at school. According to the Florida appellate court, the search of the student was found to be in violation of the Fourth Amendment to the Constitution because the teacher did not have reasonable suspicion to believe that the student was in possession of the marijuana or other drugs.

The Fourth Amendment to the Constitution protects people from unreasonable searches and seizures. In schools, the standard for searching a student is more liberal, i.e. a teacher or school official can search a student if he or she has a "reasonable suspicion" that the student is in possession of marijuana, cocaine or any other illegal drug. That reasonable suspicion cannot just be a hunch or intuition. A search of the student for illegal drugs must be based upon specific and articulable facts that reasonably warrant the search. In other words, the teacher or school official must be able to point to actual facts and logical inferences that reasonably led him or her to believe that the student was in possession of illegal drugs before the student was searched.

In this recent Florida criminal case, a student walked into a classroom where he did not belong. The teacher asked the unauthorized student to leave and escorted him out of the classroom. When the teacher walked back into the classroom, she smelled an odor of marijuana for the first time. She then took the student to the principal's office where his wallet was searched. A bag of marijuana was found inside.

The Florida appellate court found that there was not a sufficient legal basis to search the student for marijuana. While the teacher did smell marijuana, she could not articulate any facts that reasonably led her to believe that the smell of marijuana was coming from that student, as opposed to another student or other sources. As a result, the search of the student was held to be illegal, and the marijuana could not be used against the student in court. Of course, the student was still subject to punishment from the school for having marijuana in school, but he was not subject to prosecution for the drug crime of possession of marijuana because the teacher's search did not meet the reasonable suspicion standard.

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Posted In: Drug Crimes , Search and Seizure

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In a recent Jacksonville, (Duval County) Florida criminal case, a conviction for possession of cocaine was thrown out because the court found that the police officer's stop of the defendant's vehicle was illegal in violation of the Fourth Amendment.

In this Jacksonville, Florida criminal case, a police officer stopped the defendant for driving a car with a cracked windshield. The police officer justified his stop on the idea that he could stop a vehicle with an obvious equipment malfunction. The police officer then searched the car and found cocaine inside. However, the appellate court found that the police officer did not have the right to stop the defendant's car just because the car had a cracked windshield. Because the stop of the defendant's car was not legal, the cocaine that was found in the car could not be used as evidence against the defendant in court and the conviction for possession of cocaine was thrown out.

The criminal defense lawyer successfully argued that while there is a law that requires each car to have a windshield, there is no law that deals with cracked windshields. The law does not authorize the police to stop any vehicle that has any equipment malfunction. If it did, the police could stop vehicles for dents, broken antennas and other minor malfunctions. The court noted that the law does not contemplate such broad reasons to stop a vehicle.

So can a police officer pull a car over for an equipment malfunction, like a cracked windshield? Sometimes. There is a law that prohibits a driver from operating a vehicle that is in such an unsafe condition that it is a danger to any person or property. Therefore, an officer can pull a car over if he or she observes a vehicle with equipment, or in a condition, that is unsafe. An example might be a windshield that is cracked or broken to the extent that it is difficult for the driver to see through it.

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Posted In: Drug Crimes , Search and Seizure

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Drug dogs (also referred to as canines or K-9's) are used in Jacksonville by the Jacksonville Sheriff's Department and all over Florida. They are commonly used to walk around a vehicle that has been stopped by police to determine if the odor of marijuana, cocaine or other drugs is present. If the drug dog alerts to the odor of drugs in the vehicle (or some other container), the police will typically take that as a legal basis to conduct a search of the vehicle that complies with the Fourth Amendment search and seizure requirements.

However, the drug dog's signal alone may not be a sufficient basis to search a vehicle. Take for example a situation where the police stopped a vehicle and asked the occupants some basic questions to which the police officer felt he received suspicious responses. The police officer then walked his drug dog around the vehicle, and the drug dog alerted to the odor of marijuana coming from the vehicle. The police officer then searched the vehicle. He did not find drugs, but he found evidence related to a recent armed robbery and both occupants of the vehicle were arrested. Was this proper?

The Florida court deciding the case said no. At the motion to suppress hearing, the police officer testified that he and the drug dog were certified and well-trained and the drug dog had been very reliable in detecting drugs in the past. However, the police officer testified that he did keep specific records as to the drug dog's reliability and denied that the drug dog ever gave a false alert explaining that if the drug dog alerted and no drugs were found, that must mean that drugs had recently been present and the odor remained.

The court said this was not enough to search the vehicle. The state prosecutor did not satisfy their burden by merely showing that the drug dog was certified and trained Other factors that must be considered are: the exact type of training the dog received, the standards for selecting the drug dog, the standards for the training and certification and perhaps most importantly, the drug dog's track record in detecting the presence of drugs.

The court also rejected the idea that when a drug dog alerts and drugs are not found, it is not a false alert because it means drugs had recently been there. The Fourth Amendment protects citizens from unreasonable searches and seizures. The fact that a drug dog with a much keener sense of smell than a human can pick up some odor of drugs from a vehicle, without more, is not a sufficient basis to overcome the strong protections against unreasonable searches and seizures which is afforded by the Fourth Amendment.

It is, however, important to note that different courts if different parts of Florida are not in agreement regarding this issue, and the Florida Supreme Court may decide to resolve the conflicts in the future.

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Two nurses at Shands-Jacksonville Medical Center in Duval County, Florida were arrested for allegedly using their position at the hospital to acquire prescription drugs to be sold illegally on the street, according to the Jacksonville Sheriff's Office. One of the nurses was charged with multiple counts of fraudulently obtaining a controlled substance and one count of trafficking hydromorphine. The other nurse was charged with two counts of fraudulently obtaining controlled substances.

Apparently, Shands-Jacksonville, like other hospitals has a mechanism in place whereby the medical staff must provide a thumbprint before he or she dispenses prescription drugs. Shands-Jacksonville monitors the frequency with which the medical staff acquires those drugs. according to the JSO arrest report, one of the nurses was dispensing 30% more of the drugs than the average nurse.

Of course, dispensing certain prescription drugs raises more suspicion than others. Certain drugs like Hydrocodone, Oxycontin, Xanax, Vicodin, Percocet and Morphine are more commonly obtained illegally as they have become more popular among drug users, particularly kids, and can be highly addictive. According to a report from The Council of State Governments, over 6 million people aged 12 and older used prescription drugs illegally as of 2002. A more recent report cited by the American Medical News indicated that as of 2005, nearly 7 million Americans abused prescription drugs. Common ways for the prescription drugs to be obtained were: going to different doctors for multiple prescriptions (which got Rush Limbaugh into trouble), ordering drugs through internet pharmacies, theft, forging prescriptions and medical professional illegally prescribing the drugs.

In order to help the medical industry keep track of these prescription drugs and who is getting them, Congress enacted the National All Schedules Prescription Electronic Reporting Act in 2005 which authorizes a monitoring system, but the program has not been properly funded by the government.

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Posted In: Drug Crimes

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At the University of North Florida (UNF) in Jacksonville, Duval County, Florida, five students were arrested for possessing and selling illegal drugs, including marijuana and LSD. Like many arrests on drug crimes, these arrests were the result of an investigation that started with a tip that students at the UNF were selling drugs and then undercover agents going onto the campus and buying drugs from the suspects. Police will then use the evidence of the undercover drug purchases to obtain a search warrant to search a residence or place where the drugs are suspected of being kept and/or to obtain an arrest warrant for anyone involved in selling the drugs. In this case, the undercover officers were apparently UNF campus police, Jacksonville Sheriff's Office police and Jacksonville Beach Police Department police. In addition to the serious penalties associated with drug possession and sales charges, if convicted these students also face the potential of separate penalties from UNF that could affect their abilities to further their educations.

Another recent article noted an increase in using websites popular with high school and college students as a way to promote drug sales in Florida. Myspace.com is a very popular, high-traffic website that is being used as a conduit for drug sales. It is estimated that there are over 100 million people with a Myspace account. Many of these users are kids and young adults. According to the article referenced above, in the two months before the article was written, the police in Punta Gorda, Florida made nine arrests of people using or trying to use Myspace to sell drugs like, marijuana, crack, cocaine and illegally obtained pills like Oxycontin. While preparing to write the article, the author typed "marijuana" into the search field on Myspace.com and came back with 212,000 results. This, of course, does not mean that there are 212,000 people selling marijuana on Myspace, but it does give an indication of how often marijuana is being mentioned or discussed on the website. Myspace representatives said they try to monitor the website for illegal activity, like drug selling and solicitation of minors, but they are unable to effectively monitor 100 million plus accounts.

Finally, according to recent reports, a new substance with effects similar to illegal drugs is becoming more popular among students. Salvia is a hallucinogenic herb that is smoked and has hallucinogenic effects similar to LSD, a very dangerous and illegal drug. It is currently legal, but Florida lawmakers have proposed a bill that would make possession of Salvia a felony punishable by up to five years in prison.

A substance like Salvia is not automatically illegal just because it is similar to, or seems like, other illegal drugs. Just like cocaine and ecstasy years ago, there is often a lag time between when a substance is used by people, becomes popular, gets recognized by the authorities, is studied and then becomes regulated by the government. Currently, Salvia is illegal in eight states. The U.S. Drug Enforcement Agency is currently analyzing the potential for abuse of the substance, its effects on people who use it, its risks and other factors to determine whether Salvia should be labeled a controlled substance. If it is considered a controlled substance, it would then be regulated by the government.

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In a recent possession of marijuana and possession of cocaine case in Florida, the convictions of the defendant on those drug charges were reversed because the state prosecutor was unable to prove that the defendant was in either actual or constructive possession of the drugs.

What constitutes actual possession of drugs in Florida is usually simple. If a person is holding a bag of marijuana in his or her hand or if a person has cocaine in his or her pocket, they are in actual possession of those drugs. However, police often arrest people, and the state often charges people, when drugs are found near a person or in a house or car owned or occupied by a person. In those cases, the police and prosecutors rely on the concept of constructive possession of drugs.

A recent Florida criminal case explains what this means and explains a situation where such charges are improper. In this case, Mr. Robinson lived in a house with three other people. The police searched the house pursuant to a search warrant and found marijuana and cocaine inside a ceramic decoration in the kitchen that had been hollowed out. No fingerprints were taken from the decoration. The police arrested Mr. Robinson, the owner of the house.

Clearly, Mr. Robinson was not in actual possession of the drugs. The police arrested him because he was the owner and relied on the theory that Mr. Robinson was in constructive possession of the drugs. This means that he knew the drugs were in his house and had the ability and authority to exercise control over the drugs. When the state is relying on constructive possession, they usually have to prove that the defendant knew the drugs were there and had the authority to control them with independent evidence. They cannot just show that the defendant lived in or owned the house or even was close to the drugs, especially when other people also live there. Examples of the extra proof the state needs is a statement from the defendant or a witness tying the defendant to those drugs or a situation where the drugs were found immediately near the defendant in plan view, not hidden.

In the Robinson case, the state could only prove that Mr. Robinson owned and lived in the house. The drugs were concealed so that a person would not know they were in the decoration just because the person was in the house. There was no specific evidence that Mr. Robinson put the drugs in the ceramic decoration or even knew they were there. There was nothing concrete tying him to the drugs, and the state could not prove he was in constructive possession of those drugs. As a result, his conviction was reversed.

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Posted In: Drug Crimes

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