Jacksonville Criminal Lawyer Blog

Over the last few years, we have seen how police in Florida have taken a much greater interest in so-called pain clinics, making a multitude of arrests of a wide range of people from the owners and doctors at the pain clinics to the people who use the prescription medication obtained at the pain clinics.

In a recent case south of Jacksonville, Florida, police were conducting surveillance in the parking lot of a pain clinic. They observed the defendant exit the pain clinic and enter a vehicle with two other people inside. The police officer followed the vehicle and watched as the three occupants apparently passed around a prescription pill bottle. Based on this observation, the police officer stopped the vehicle and arrested the defendant for doctor shopping after finding the pill bottle.

The criminal defense lawyer filed a motion to suppress evidence of the pill bottle alleging that the stop of the vehicle was invalid. The police officer testified that he had been investigating pain clinics for years and it is common for people to come from long distances to these pain clinics, buy prescription pills with cash without a proper medical exam and then share the pills with others in the parking lot.

The court found that the experience of the police officer along with his observations at the pain clinic were sufficient to give him reasonable suspicion to believe the defendant was illegally sharing drugs in the vehicle, although the observations of the police officer could also be explained by perfectly innocent conduct.

In Florida, in order to be charged with trafficking in marijuana, which typically carries much higher penalties than possession of marijuana, the quantity of marijuana has to be greater than 25 pounds. In a recent trafficking in marijuana case south of Jacksonville, Florida, after the defendant was arrested, the police weighed the marijuana at 26 pounds, which is sufficient for a trafficking in marijuana charge. Approximately a year and a half later, the criminal defense lawyer for the defendant had the marijuana re-weighed. The weight at that time was 24 pounds, which was not sufficient for a trafficking in marijuana charge. Apparently the discrepancy was due to water seeping from the marijuana over time that pooled at the bottom of the container. The question, then is whether the weight of the water can be included in the weight of the marijuana for the purpose of a trafficking in marijuana charge.

The court determined that the weight of the marijuana does include moisture and the charge of trafficking in marijuana was appropriate. Under Florida law, marijuana, or cannabis, is basically defined as all parts of the marijuana plant including the seeds, the resin and any compound thereof. As a result, the court found that this includes any moisture naturally found in the plant for weighing purposes. It would not, however, include packaging materials, soil or excess water not inherent in the plant's vegetable matter.

Since the court decided that the water that seeped out of the marijuana plant over time was a natural part of the plant, and not excess water, it was included in the weight of the marijuana and the trafficking in marijuana charge was upheld.

In Florida, police often bring a drug dog to a traffic stop if they think there are drugs in the vehicle. The police are allowed to bring a drug dog to the scene of a traffic stop if they have reasonable suspicion to believe there are drugs in the vehicle and there is a brief wait for the drug dog to arrive or if the police officer is writing the driver a ticket for a traffic violation and the drug dog is brought to the scene within the normal time it takes to write the ticket. The justification is that it is not a significant violation of one's privacy rights to allow a dog to smell around the outside of a vehicle. As a result, the courts in Florida are more lenient with drug dog sniffs and allow police to do them in more situations than if the police are opening doors or looking in and searching personal property.

In a recent case involving marijuana trafficking and electricity theft, the Florida police tried to extend this authority to the front door of a residence. In this case, the police went onto the property of the defendant and had the drug dog sniff the front door area without a search warrant or probable cause to believe marijuana or other drugs were inside. The drug dog alerted to the odor of marijuana, and a trafficking amount of marijuana was found in the vehicle.

The Florida Supreme Court found the search illegal. While the police did not enter the home, as in the drug dog cases involving vehicles, a person's home gets greater protection than a person's vehicle on the public roads. As a result, police are not allowed to go onto a person's property with a drug dog and sniff the outside of the home without a search warrant. This was considered to be an unwarranted invasion of a person's strong Fourth Amendment right to be free from unreasonable searches and seizures in his/her home or on his/her residential property.

However, the issue may not be finally resolved. The prosecutor's office in Florida has asked the United States Supreme Court to review this issue, and if they do, their word will be the final word on whether police can go take a drug dog on a person's property and sniff the outside of the home without a search warrant.

Despite the obvious and incomprehensibly expensive failure of the war on drugs, the United States government continues to expend time, resources and of course, money into making more and more drugs illegal. This time, the targets of the government are synthetic stimulants, or "bath salts", and synthetic marijuana, or "fake pot." The vote in the House of Representatives could happen any time, and the new bill making the two substances illegal is expected to pass without a problem. The new law would allow up to 20 years in prison for people who distribute small quantities of the bath salts or fake pot. In addition to the upcoming federal ban, many states, including Florida, have enacted similar laws making bath salts and fake pot illegal.

A new study found that traffic fatalities declined in states that legalized medical marijuana. The study looked at the relationship among marijuana laws, alcohol consumption and traffic-related deaths. The results were an almost 9% decline in traffic fatalities and a 5% decline in beer sales in states that legalized medical marijuana. These results are in direct contradiction to people who were concerned that legalizing medical marijuana would result in more drivers impaired from drugs and more traffic deaths.

The study looked at 13 states that legalized marijuana from 1990 - 2009. In those states, alcohol consumption was reduced for people in their 20's, whose leading cause of death is traffic accidents. In 2009, alcohol-impaired driving contributed to about one-third of all fatal motor vehicle accidents. Reducing fatal accidents by 9% by legalizing medical marijuana would make a significant impact in the number of young people killed in motor vehicle crashes.

As pain pill or pill mill cases become much more prevalent in Florida, one issue that we have looked at quite often is a person's privacy rights in his/her pharmacy and medical records. In Florida, a person has clear privacy rights in his/her medical records. It requires a court order for the police or another party to see a person's medical records, and there must be a legitimate legal basis to do so. However, pharmacy records are much different. There is much less protection for pharmacy records relating to prescription narcotics. In some cases, a police officer can go to a pharmacy and request a person's prescription records without a search warrant or court order and without the patient ever being notified of the police search. The police officer merely has to tell the pharmacy that he/she is working on a criminal case, and the pharmacy records of controlled substance prescriptions become an open book.

In many cases, this issue comes up in relation to doctor shopping charges- where a person is suspected of going to different doctors in a short time period to get similar pain pill prescriptions without informing the doctors that he/she went to the other doctor for the same purpose. The police may then go to the pharmacies where the person is filling the prescriptions for evidence of the doctor shopping crime.

Florida law allows the police to just walk into the pharmacy and obtain records of prescriptions for controlled substances when the police officer says he/she is working on a criminal case, or in other words, just about any time a police officer feels it is remotely relevant to a criminal investigation. The very limited privacy protection prevents the police officer from obtaining pharmacy records in this way of prescriptions for drugs that are not controlled substances.

Sometimes, the police will try to use this law to delve further into a person's medical data. Once they easily obtain the prescription information, the police may determine the names of the prescribing doctors and then go talk to them about the defendant and the allegedly illegal prescriptions. This is a violation of the law. While Florida law does allow the police to easily access a person's controlled substance pharmacy records, it does not allow the police to take the next step and get any medical records or talk to any medical personnel about the defendant, unless the police officer gets a court order first.

As we have discussed several times in the past, the old laws dealing with prison sentences were very different for crack cocaine crimes as opposed to powder cocaine crimes. Basically, a person charged with an amount of crack cocaine often faced a much more severe prison sentence than a different person charged with the same amount of powder cocaine. After years of incredibly disparate sentences for similar drug crimes, quite often detrimentally affecting African-Americans, Congress finally acted to minimize the difference with the Fair Sentencing Act of 2010. The difference was not eliminated altogether. However, because the differences were so tremendous before, there was room to make significant changes. The ratio of prison sentences for crack cocaine crimes versus powder cocaine crimes went from 100 - 1 to 18 - 1. There is still a pretty big difference, but it is much better than before.

The new rules are now in effect for federal crack cocaine and powder cocaine crimes. Anyone who is charged with a crack cocaine crime going forward will benefit from the less stringent sentencing rules. Due to a United States Sentencing Commission decision, the new rules are also being applied retroactively, which means people who were arrested and convicted for crack cocaine crimes in the past and sentenced to prison under the old rules can challenge that sentence and request a modified sentence more in line with the new rules. Many people have recently been successful with that challenge.

Statistics show that approximately 1,800 people in federal prisons on crack cocaine charges are eligible for immediate release under the new sentencing rules. Additionally, about 12,000 federal inmates convicted of crack cocaine charges are eligible for reduced prison sentences.

There are a few different kinds of drug crimes in Florida. Simple possession is typically the least serious drug crime, and trafficking is the most serious. In between the two, possession with intent to sell illegal drugs is still a very serious felony crime. The crime is often associated with the suspect being within a certain distance of a public park or school. For the most part, prosecutors and judges look for more serious sentences when they believe a defendant was selling, or intending to sell, an illegal drug rather than just using it.

What evidence is required to prove possession with intent to sell an illegal drug in Florida? Sometimes, the police will try to use the quantity of the drug found on the suspect as the primary, or only, evidence that the defendant intended to sell the drug. This may be allowed under Florida law if the amount of the drugs was so significant, no reasonable person would believe it was for personal use. For instance, if the police find a person with a couple of bricks of crack cocaine, that would probably be sufficient for a possession with intent to sell crack cocaine charge. However, when the quantity does not obviously indicate the drugs are for sale rather than personal use, the state must present other evidence that the drugs were for sale.

In a recent case south of Jacksonville, Florida, the police responded to a park where people were allegedly selling crack cocaine. Ultimately, they arrested the defendant who was found carrying a bag with about 50 crack rocks inside. The defendant was arrested for possession of crack cocaine with intent to sell within 1,000 feet of a public park.

The criminal defense lawyer argued that the state did not have sufficient evidence that the crack cocaine was for sale and the possession with intent to sell charge should be dropped. The state relied on just two facts to support the intent to sell charge- the quantity of the crack rocks and the fact that the defendant did not have any drug paraphernalia to use the crack cocaine on him. However, this was insufficient evidence to prove possession with intent to sell crack cocaine. Because there was a possibility the drugs could have been for personal use, the state needed to present more evidence of intent to sell. For instance, if the police testified that they saw the defendant engage in apparent drug transactions or arrested him with a large amount of cash along with the crack cocaine, that might be sufficient to prove intent to sell. The quantity of the crack cocaine alone in this case was not sufficient, and the possession of crack cocaine with intent to sell within 1,000 feet of a park charge was dismissed.

Over the last several years, we have seen a significant increase in the number of arrests of people in Florida for possession, sale and trafficking involving prescription narcotics like Oxycodone, Hydrocodone, Roxycontin and Oxycontin. These drug crimes involving prescription pills have increased at a much greater rate than the more traditional drug crimes involving marijuana, cocaine, heroin and crack.

The prescription pill criminal cases come in many forms. One area that has been more difficult for the police to detect is referred to as doctor shopping. A common approach by people looking for prescription painkillers like Hydrocodone and Oxycodone is to set up multiple appointments with different doctors, complain of pain and get prescriptions for pain pills from each doctor. Of course, the patient does not tell each doctor that he is seeing the other ones for the same purpose of getting the pain pill prescriptions. The patient then gets the prescriptions from the various doctors, fills them at different drug stores and obtains a large quantity of pills to use and/or re-sell. This was difficult for the doctors, pharmacists and the police to detect because there was no way for one doctor to know if a patient has seen a similar doctor recently and received a similar prescription unless the patient disclosed that information.

As a result, Florida made it illegal to go to multiple doctors within a 30 day period and get similar pain pill prescriptions without telling the doctors of the patient's visit(s) to the other doctor(s). This is called doctor shopping, and it has become a felony crime in Florida. However, this relatively new law did not make it any easier for police or doctors to catch people doctor shopping. The police would only solve such a crime if they found the various prescriptions or pill bottles with the different doctors' names and dates or otherwise came across this information, which was unlikely.

In order to give the police, doctors and pharmacists a better tool to stop doctor shopping for pain pills, Florida established a statewide database where doctors are required to input information about pain pill prescriptions for their patients. As of now, doctors in Florida are not required to check the database to see if a patient recently obtained a similar prescription, so the law has a major flaw. However, next year the law is supposed to require that doctors check the database before providing a controlled substance prescription to make sure the patient is not doctor shopping. Once this requirement becomes effective, it will be much more difficult for people to obtain pain pills and other controlled substances by doctor shopping.

In addition to Florida, most of the other states now have a prescription drug database. However, it is not clear from the recent Jacksonville article whether Florida doctors can check the database from other states. If not, there is another flaw that is likely to affect police, doctors and pharmacists in Jacksonville. Since Jacksonville is so close to the Georgia border, a person may be able to get pain pill prescriptions from doctors in Florida and Georgia without each doctor knowing of the other if the doctors do not have access to prescription database information in the other state.

Normally in Florida, when the government plans to make something illegal, whether it is certain conduct by a person or possession of some new drug the government is afraid of, the Florida legislature will come up with a new criminal law. Congress does the same thing on the federal level. However, the DEA has authority to ban certain substances on a more immediate and temporary basis if the DEA determines the substance is dangerous. The DEA has recently acted to ban certain "bath salts", more particularly known as mephedrone, methylone and 3,4 methyleneoxypyrovalerone. These "bath salts" have become more popular in Florida over the last couple of years. They are known by the more common names of Vanilla Sky, Ivory Wave and Bliss.

The DEA ban classifies the "bath salts" as Schedule I controlled substances and makes it illegal to possess or sell these "bath salts" for at least a year. During the time of the temporary ban, the DEA is supposed to study the substances to determine if they are dangerous and a permanent ban is appropriate. The DEA is concerned that these "bath salts" may cause extreme paranoia and violent episodes among other side effects. While the DEA does have authority to ban potentially dangerous drugs more quickly than Congress and state legislatures, the problem the DEA has is they must specifically identify which substances are being banned. However, the people making these drugs can quickly manufacture new, derivative substances not covered by the ban and essentially outrun the DEA's efforts.

Over the last several years in Florida, drug cases involving pills such as Hydrocodone, Oxycodone, Roxycontin and other pain pills have become much more prevalent as opposed to more traditional drug crimes involving marijuana, cocaine, crack and heroin.

In a recent trafficking on Oxycodone case south of Jacksonville, Florida, the police searched the defendant and found two prescription pill bottles clearly labeled to contain Oxycodone. The pill bottles were also labeled with the defendant's name on the prescription. Because the total weight of the Oxycodone pills in the two pill bottles was greater than 4 grams, the Oxycodone pills exceeded the weight necessary to warrant a trafficking charge. While the pills were in clearly marked prescription bottles, the police officer determined that the prescriptions were excessive- one bottle indicated a prescription for the defendant for 160 thirty milligram Oxycodone pills filled on April 7, 2010, and the other bottle indicated a prescription for 224 thirty milligram Oxycodone pills filled on April 9, 2010. The two separate prescriptions for Oxycodone were apparently written by two different doctors that were each unaware the defendant went to the other doctor for the prescription because the defendant never told either doctor she was seeing the other doctor for the same purpose.

A valid prescription for pills such as Hydrocodone from a licensed doctor written in the normal course of business is a defense to the charge of possession of, or trafficking in, pills. However, the state argued that because the defendant was engaged in doctor shopping- going to two different doctors in a short period of time to get prescription pills from each without informing the doctors of each other- the prescriptions were not given in the normal course of business so the legal prescription defense does not apply.

However, the court rejected this argument and found that the defendant did have a valid defense to trafficking in Oxycodone because the defendant did have valid prescriptions for the Oxycodone pills from licensed doctors even though they were obtained through illegal doctor shopping. Regarding the prescription defense, the issue is not whether the defendant was acting appropriately, but whether the prescriptions were issued in the licensed doctor's normal professional practice. If so, the prescriptions are valid, and a possession of trafficking charge would be dismissed.

The bottom line here is that the state improperly charged the defendant with trafficking in Oxycodone. The defendant clearly violated the law when she obtained the two Oxycodone prescriptions through doctor shopping. However, she still had a clear defense to the trafficking charge. Because the defendant's crime was doctor shopping rather than trafficking in Oxycodone, the proper charge was in fact, doctor shopping. The state made a mistake and overcharged the defendant so the case was thrown out.

I saw an amazing statistic in an article about the number of people arrested on drug crimes in the United States last year. By "amazing", I mean hopelessly pathetic and extremely wasteful and expensive. According to the statistics, more than 1.6 million people were arrested on drug offenses in 2010, which equates to a drug arrest every 19 seconds- all day, every day last year. While some might assume, or at least hope, that most of these drug arrests involved more serious drugs like heroin, methamphetamine and cocaine, more than half of these drug arrests involved marijuana. And the overwhelming majority of marijuana arrests were for simple possession of marijuana as opposed to sale or trafficking in marijuana.

These 2010 numbers represent a slight increase in drug arrests from 2009 but a more than 8% increase from ten years ago. Another disturbing aspect of these high drug arrest numbers is that incidents of other crimes have decreased. Violent crimes such as murder and robbery as well as property crimes such as theft and burglary have all decreased in the same time period these drug arrests have reached all time highs. People in the United States continue to be arrested for drug crimes more than any other crime. However, with this War on Drugs being waged for over 40 years, it is hard to see how any of this is having a beneficial effect on this country. On the other hand, it is easy to see how incredibly expensive and wasteful it continues to be.

As criminal defense lawyers in the Jacksonville, Florida and North Florida area, we have seen a significant increase in the number of criminal cases involving pain clinics and pain management practices throughout Florida and South Georgia. State and federal law enforcement officials have been very active in raiding any medical practices they believe are illegally dispensing pain medication and narcotics in violation of the law and without following the proper medical procedures. They are also arresting doctors and owners of pain clinics for operating these pain clinics without the proper license from the Florida Department of Health. When the police or Drug Enforcement Agency officials raid and search these pain clinics, they often arrest everyone associated with the medical facility, including employees, doctors and owners. They also often seize any assets of value at the medical practice including records, equipment, money and vehicles.

Recently, local police raided another doctor's office in Maclenny, Baker County, Florida and charged several people with prescription fraud. Police allege that the people arrested at the doctor's office would provide prescriptions for pain medications for cash without having them examined by the doctor. Police alleged that some of the patients who received the prescription drugs illegally ultimately overdosed.

Pain management facilities have been around for many years, and they provide a valuable service to people dealing with chronic and acute pain. However, law enforcement officials, particularly in Florida, believe that some pain clinics are starting up that are providing pain pills to people who are not being properly examined by a doctor and do not medically need the pills. They refer to these places as pill mills as they allegedly see many patients a day and provide prescription pain medication to anyone for a small fee.

If you have an affiliation with a pain clinic or other pain management facility and have questions about the changing laws that deal with licensure and other issues and want to discuss the proper way to operate a pain management practice, feel free to contact us for a free consultation.

As criminal defense lawyers in the Jacksonville and North Florida area, two of the most common crimes we see are possession of illegal drugs and delivery of illegal drugs such as marijuana, cocaine, methamphetamine and heroin. Hundreds of people in the Jacksonville and North Florida areas are put in jail for those crimes on a weekly basis. However, it is possible that those drug convictions were unconstitutional because the Florida possession and delivery of drugs law violates a person's right to due process under the Constitution.

In a recent, very well-written opinion by a judge in Miami-Dade County, the possession and delivery of illegal drugs statute was determined to be unconstitutional. This is the same criminal statute that has put thousands and thousands of people in jails and prisons in Florida over the years. So, what was the problem with such a well-established and frequently used criminal statute? According to the judge's analysis, the statute, as written, does not distinguish between people who possess or delivery illegal drugs knowing the illegal nature of the substance and those who possess or deliver illegal drugs not knowing what they have is illegal.

Of course, the majority of people who possess or deliver illegal drugs know very well what they are doing is illegal. However, there are those people who possess or deliver illegal drugs who do not know the illegal nature of what they are possessing or delivering. The criminal statute does not distinguish between those two mental states- intending to do the act that is illegal in the first instance and not intending to do anything illegal in the second instance. For that reason, according to the judge, the statute is unconstitutional because it covers conduct where there is no intention to break the law.

The State argued that if a person did not know the substance he/she had or delivered was an illegal drug, the defendant could assert that as a defense. However, according to the judge, this placed an impermissible burden on the defendant who is always innocent until the state proves him/her guilty in a criminal case. It is the state's burden to prove their case, and one of the elements that must be proven is the fact that the defendant knew what he/she had was an illegal drug.

For instance, consider a situation if Person A has a closed gym bag and asks his friend to take it to the gym and put it in his locker. Person A knows there is a bag of cocaine inside and is plannign on having his buyer pick it up at the gym. The friend has no diea what is in the gym bag bvut gets arrested before he makes the delivery. Under the statute, the friend is guilty of delivering cocaine without the state having to prove that the friend knew he was illegally delivering cocaine.

What are the implications of this recent ruling that the drug statute is unconstitutional? There are thousands of people with pending drug cases who have been arrested and/or charged by this statute that has now been deemed unconstitutional by a Circuit Court judge. Will those cases be allowed to go forward? There are thousands of people in jail or prison who were sentenced after having been convicted of this questionable drug statute. Should they be released?

The judge who issued this ruling is a circuit court judge in Miami-Dade County. Other judges in circuit courts in other parts of Florida may disagree and find the drug statute to be perfectly legal. A ruling in Miami may have no effect on a similar case in Jacksonville where the issue is raised. What will likely happen is the Florida Supreme Court will have to decide the validity and constitutionality of this drug statute. Once the Florida Supreme Court decides this issue, it would be binding on all defendants charged with possession of illegal drugs or delivery of illegal drugs in Florida.

Police officers are allowed to search a person for drugs, guns or other evidence of criminal activity in limited circumstances. One of the most common bases for searching a person is consent. The police can almost always approach a person and ask for consent to search him/her. Additionally, everyone who is arrested for a crime will be searched by the police. The primary legal justification for this search incident to an arrest is to make sure the suspect does not have any weapons on him/her to ensure the police officer's safety when he/she takes the suspect into custody.

However, the arrest has to be valid for the search incident to the arrest to be legal. The police cannot search a person for illegal drugs, guns or other criminal evidence if there is no legal basis to arrest the person in the first place. For example, if a person commits a traffic violation, the police officer can give that person a traffic ticket, but the police officer is not allowed to search the person based on the traffic violation. The police officer can ask to search the person and/or his/her vehicle during the traffic stop, but the person has a right to refuse the police request to search. Likewise, if a person is in violation of some other ordinance for which jail time is not a potential penalty, the police cannot search a person based on a violation of that ordinance.

In a recent criminal case south of Jacksonville, Florida, police officers saw the defendant in a city park after dark. The city had passed an ordinance prohibiting people from being in the city park after dark due to drug activity in the park. The police officer approached the individual and told him about the ordinance. The police officer then arrested the defendant for violating that ordinance. Incident to the arrest, the police officer search him and found marijuana and drug paraphernalia in his pocket. The defendant was then arrested for possession of marijuana (cannabis) and possession of drug paraphernalia.

The criminal defense lawyer moved to suppress the evidence of the marijuana and drug paraphernalia arguing that the arrest for the city ordinance was illegal so the resulting search was also illegal. The judge agreed. Because the city ordinance could not result in jail time as a possible penalty, the police officer did not have a right to arrest and search the defendant. All the police officer could do was detain the defendant for the purpose of writing him a ticket.

The police officer also tried to justify the search by claiming the defendant put his hands in his pocket and the police officer was concerned he might have a weapon and be at risk. However, there was no objective evidence that the suspect was armed, so a search for officer safety was not justified. The evidence of the marijuana and drug paraphernalia was thrown out, and the possession of marijuana charge was dropped.

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.

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.

At Shorstein & Lasnetski, LLC in Jacksonville, Florida, we represent people who are being investigated or have been arrested and charged with crimes relating to pain clinics and pain management practices, whether they are doctors, owners or employees. Over the last several years, we have seen a significant increase in state and federal investigations of pain clinics in Florida and Georgia. State and federal law enforcement officials take the position that many of these pain clinics are so-called "pill mills" that prescribe addictive pain medication to people as quickly as possible and without performing the proper examinations. While there are some pill mills out there, many pain management clinics are operating properly and legally, yet they are still the subject of criminal investigations. Clearly, there are many people with chronic pain who are greatly benefited by pain management doctors but who are not fortunate enough to have adequate insurance.

Another example of law enforcement going after pain clinics was seen in South Florida recently. Thirty-two people, including doctors and owners of pain clinics, were charged with crimes relating to the distribution of pain pills last week. They were calling this the largest illegal pain clinic operation in the country and alleged that 20 million pain pills were distributed for a profit of approximately $40 million between 2008 and 2010. Oxycodone was the primary prescription drug that was issued to the patients.

According to the Attorney General's office, Florida leads the nation in illegal pain medication distribution. Articles like this one about the police shutting down a pain clinic and arresting multiple doctors, owners and employees are not uncommon.

As criminal defense lawyers in Jacksonville, Florida and the North Florida area, we see the trends in criminal law as they occur. One obvious trend over the last several years is the shift away from more traditional drug crimes involving marijuana, crack, cocaine and heroin towards drug crimes involving prescription drugs like Oxycontin, Hydrocodone and Oxycodone. Florida police and lawmakers are also aware of this trend and have responded by making prescription pill crimes and punishments more serious and making more arrests in this area.

A recent article on News4Jax.com will not do anything to stem the tide of stricter laws and more arrests involving prescription drugs. According to the article, deaths from prescription drugs increased by 9% in 2010, despite increased efforts by law enforcement to crack down on the illegal distribution of these prescription drugs. Governor Scott noted that the government has strengthened laws and regulation as well as budgeted more money for police in an effort to address the rise in prescription drug related crimes and deaths. Of course, throwing more money into regulation and enforcement has never seemed to reduce drug crimes in the past; it only seems to result in more money and resources needed in the criminal justice system and the prison system. Among the drugs most responsible for the increased deaths from prescription drugs, Oxycodone was the number one drug. According to the article, there were almost three times as many deaths in Florida from Oxycodone than cocaine.

Florida is the leading state when it comes to the illegal purchase of prescription drugs. As a result, law enforcement officials have gone after pain clinics alleging they are providing prescription drugs to countless people without following the required medical protocol. We have represented several doctors, pain clinic owners and employees who have been charged with serious felony crimes related to various pain clinics. You can be sure that whenever law enforcement makes a certain crime a priority, they cast a wide net to try and address the issue, and many people who are innocent or only tangentially involved will get caught up in it.

In Florida, a common scenario in drug cases occurs when the police pulls a driver over and suspects the driver has illegal drugs in his/her vehicle. The piolice officer may ask for consent to search the vehicle for drugs, or the police officer may bring a drug dog, or K9, to the scene to sniff the area around the vehicle for the odior of illegal drugs such as marijuana, cocaine, heroin and methaphetamine. The drug dog is presumably trained and certified to detect to the odor of illegal drugs and indicate a particular signal to the police officer handler who recognizes the signal as an indication that there is an odor of illegal drugs coming from the vehicle. In some jurisdictions, when the drug dog alerts, this is sufficient problable case to justify a search of the vejhicle by the police.

However, in Florida, the state has the burden of proof that a search of one's vejhicle for illegal drugs is based on probable cause, and merely presenting evidence that a trained drug dog alerted to an odor of illegal drugs does not meet this burden. The state must prove that the drug dog, and the police officer handler, were sufficiently trained and certified to detect the odor of illegal drugs. However, this is the beginning of the analysis, not the end. The state must provide details of the drug dog's training and the drug dog's performance during training. The state must also present evidence of how often the drug dog gave false alerts in training and in the field after training. The court should also look at instances where the drug dog alerted to a residual odor of illegal drugs, i.e. where drugs were not found in the vehicle but evidence sugests they were previously in the vehicle.

In some cases, the courts have been satisfied with a drug dog's reliability to detect an odor of illegal drugs as long as the state has shown the drug dog had the proper training and credentials. However, Florida law requires a much more detailed huistory of the training, success and failure of a drug dog's ability to actually detect the presence of illegal drugs.

for example, in a recent cocaine and marijuana case south of Jacksonville, Florida, the evidence of the cocaine and marijuana, and the possession of marijuana and cocaine charges, were thrown out because the trained and certified drug dog had a success rate of just over 25% in detecting the presence of actual illegal drugs in the field in almost thirty attempts.