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In Florida, many criminal cases involving drugs and guns result from traffic stops.  A police officer will conduct a traffic stop and become suspicious or allegedly discover evidence of illegal activity and search the vehicle.  A search of the vehicle can be based on consent, which the driver or occupant never has to give.  Or, sometimes the police officer will call a drug K-9 to the scene that alerts to the odor of narcotics.  These searches can be questionable if the police officer keeps the vehicle and driver at the traffic stop for an unreasonable period of time while waiting for the drug dog.  There are other methods the police use to search vehicles after a traffic stop, but requesting consent is a common one.

Not every traffic stop involves a vehicle.  People in Florida need to be aware that the traffic laws apply to people on bicycles as well.  The police can stop a bicycle for running a stop sign or a red light just like a vehicle.  However, the initial stop of the vehicle, or bicycle, must be legally valid in order for any search or arrest thereafter to be valid.

In a recent possession of crack cocaine case south of Jacksonville, Florida, the suspect was riding his bike against traffic.  Florida law says a bike must ride with traffic, just like a car must.  Of course, people ride their bikes against traffic all of the time and the police ignore it, but in this case, they stopped the rider.  While issuing the rider a citation, the police officer asked him if he had any drugs or guns in his possession.  The rider admitted to having crack cocaine.  The police officer searched him, found the cocaine and arrested him for possession of crack cocaine.

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In Florida, the DUI (driving under the influence of alcohol or drugs) laws come with minimum mandatory penalties for a conviction.  These penalties increase for each successive DUI a person gets.  One benefit of a criminal defense lawyer getting the state to amend a DUI charge to a reckless driving charge is the reckless driving charge does not count as a DUI conviction that increases the minimum penalties if the person gets one or more additional DUI convictions.

One of the minimum penalties that comes with a DUI conviction is a suspension of the person’s driver’s license.  The suspension can be as short as six months for a first DUI conviction or as long as ten years for a third DUI conviction that is within ten years of the prior conviction.  The DMV does allow people to get hardship licenses which permit people to drive to work, school and other necessities, but there may be a period of time before a person can apply for a hardship license depending on the case.

If a person gets a fourth DUI conviction in Florida, that person’s driving privileges will likely be revoked forever.  That is mandated by statute in Florida.  However, not all convictions count.  In a recent DUI case from Jacksonville, Florida, the DMV attempted to permanently revoke a person’s driving privileges based on four prior DUI convictions.  However, it was noted that one of prior DUI convictions was a violation of a city ordinance, rather than a Florida state statute.  The criminal defense attorney appealed the permanent suspension.  The court agreed and held that a DUI conviction that is a violation of a city or municipal ordinance does not count as one of the four prior DUI’s that can result in a permanent driver’s license suspension.  The prior convictions must be violations of state DUI laws.  The conviction at issue was an old DUI conviction that related to an old city ordinance.  However, the DMV can go back as far as they want to count prior DUI convictions.  If a conviction is 40 years old, it can count, as long as it is a state DUI violation.

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Cyberstalking-Blog
A 20 year old student at the University of North Florida was recently the victim of a man who created fake social media accounts using her name and likeness.  Her Facebook photos were used to create fake social media accounts on Instagram and Tinder.  The fake accounts requested money be sent and stated that the victim was “sexually ready.”  So, was this a crime?  And if so, what crime was it?

The young man that created these fake social media accounts was arrested and charged with Cyberstalking.  Cyberstalking is defined in Florida Statute Section 784.048(1)(d) and requires:

  1. engaging in a course of conduct to communicate, or to cause to be communicated, words, images, or language,
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We at Shorstein, Lasnetski & Gihon do not handle much in the way of family law matters, but we came across a case that illustrates a possible connection between an order that is common in divorce cases and a potential criminal violation in Florida courts.  In divorce cases where a minor child is involved, custodial rights will have to be worked out between the parties or determined by the judge.  Obviously, custody issues regarding one or more children can be very contentious in divorce cases, along with other issues such as alimony and division of property.  One or both parties may not be happy with the outcome and how much time he/she gets with the child or children after the divorce is final.

When it comes to family law child custody orders, violating the order can have serious consequences.  In a case just south of Jacksonville, Florida, the parents divorced, and the judge ordered shared custody between the parents.  The father violated the order and took the child away without allowing the mother to have contact with the child for several months.  When the father and child were found, the father was arrested for kidnapping and concealment of a child contrary to a court order.  The concealment charge is the one related to the family court order.  That Florida statute makes it a crime to take a minor outside of the state of Florida or conceal the location of the child in violation of a custody order of which the parent is aware.  A violation of this statute is a third degree felony which is punishable by up to five years in prison.

The criminal defense lawyer moved to dismiss the concealment charge arguing that the custody order did not require the father to disclose the child’s location to the court.  This argument was rejected.  A concealment crime occurs if a parent conceals the child’s location from the court or the other parent who is entitled to custody if it is in violation of an order.

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On July 6th, 2016, Corrine Brown, along with Elias Simmons, was indicted on a twenty four (24) count federal indictment.  You heard me right, folks.  24 counts.  The charges all stem from her relationship with a organization called the One Door for Education – Amy Anderson Scholarship Fund.  The basic allegations are that Corrine Brown, when she was a congresswoman, would solicit contributions to this fund.  The proceeds from the contributions were supposed to go to scholarships.   The government has alleged that the vast majority of the money taken into this scholarship fund went into the pockets of Corrine Brown, Elias Simmons and others.  Specifically, the federal government has alleged that out of approximately $800,000 contributed to the fund, only about $10,000 went to actual scholarships.  So let’s break this down and look at the various charges.

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The Government alleges that Corrine Brown and others solicited money into the One Door for Education Scholarship Fund and then deposited some of those proceeds into their personal accounts for personal use.

Count 1 – Conspiracy to Commit Wire Fraud and Mail Fraud

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When the police are investigating a crime in Florida and seize property that they believe is proceeds of criminal activity or used to facilitate criminal activity, a forfeiture case might result.  A forfeiture case is a separate case where the state attempts to assume ownership of property that they seize as part of a criminal investigation.  Civil forfeiture cases receive a lot of criticism in Florida and other states, and for good reason.  The forfeiture laws allow the police to take people’s property and hold onto it indefinitely.  There is a low threshold for the state be able to keep the property and, as a practical matter, it is often the job of the claimant to prove the property was legitimate in order to get the property back.  This process can take months or years to resolve.  In many forfeiture cases, it seems more accurate to say the person trying to reclaim his/her property is guilty until he/she can prove innocence, at least in relation to the property at issue.

Another characteristic of forfeiture cases that many people do not understand is that the state does not need to convict a person of a crime in order to be allowed to forfeit the property that is allegedly related to a crime.  A person can be found not guilty at trial or the criminal case can be dropped, yet the state can still successfully forfeit property.  In fact, the police do not even have to arrest anyone and the state does not even have to charge anyone in order to move forward with a civil forfeiture case.  We have handled several cases where an arrest of anyone was never even a consideration, but the state still attempted to forfeit large sums of money.

Needless to say, in practice, the state’s practice of forfeiting property is very questionable.  As favorable to the state as it may be, there is, in fact, a procedure whereby a person can claim and try to recover his/her property.  Forfeiture cases in Florida are considered civil cases.  As a result, the rules of civil procedure apply.  This is good in some respects as it allows for broad discovery (collecting evidence from the other side) procedures.  On the other hand, it is bad for claimants as the state has a lower threshold to win its case.  The state’s burden is a preponderance of the evidence (just greater than 50%) rather than the higher standard of beyond any reasonable doubt in criminal cases.

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The prior post discussed the difference between a consensual encounter with the police in Florida and something more involved.  The police in Florida are free to engage people in consensual encounters to ask questions or make observations, and people are free to refuse to answer questions or otherwise cooperate.  Once an encounter becomes more like a seizure, i.e. a situation where the person does not feel like he/she can freely leave, the police must be able to point to specific facts indicating there is evidence of criminal activity to continue.

A recent firearms case near Jacksonville, Florida provides another good example of what the law allows regarding searches and seizures in Florida.  In this case, the police approached an apartment responding to a noise complaint.  They knocked on the door, the suspect opened it and then quickly closed it.  It is important for people to understand that they have the right to do this.  No one has to answer the door if the police are knocking without a warrant.  If a person opens the door and decides he/she does not want to speak with the police or does not want to speak with police any longer, that person can end the conversation.  As long as there is no evidence of a crime or a warrant, the police cannot enter the home.  Of course, in reality, the police may not be satisfied with that response, but at least on paper, it is permitted.

In this case, the police claimed they could smell an odor of marijuana coming from the apartment when the occupant briefly opened the door.  While the police were deciding what to do next, the occupant left the apartment and drove away in a vehicle.  The police officers followed him and ultimately conducted a traffic stop to ask him why he slammed the door and to see if he had any marijuana in his vehicle.  As they were talking to the driver, the police officers saw a handgun partially concealed in the vehicle.  They arrested the driver for carrying a concealed firearm.

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The Fourth Amendment and the Florida constitution provide that people have a right to be free from unreasonable searches and seizures conducted by the state.  There are thousands of court cases that interpret what exactly this means in the context of the different police encounters.  As a general rule, the police in Florida are allowed to go up to anyone and ask questions, even if the police suspect that person committed a crime and are trying to acquire incriminating information.  Of course, that person is free to refuse to answer those questions.  The police can walk up to a person’s front door (as long as access is not protected by a gate or other privacy barrier) or knock on a driver’s window to ask questions.  If the subject chooses to engage the police and answer, the constitutional search and seizure provisions do not apply.

However, if the encounter develops into what is considered a seizure, the police need to establish reasonable suspicion of criminal activity or probable cause or possibly have a search warrant depending on the circumstances.  For instance, consider an example where a police officer sees a car stopped somewhere suspicious with the driver inside the vehicle.  The officer might suspect something improper or just wonder if the driver is having trouble of some kind.  Often, the police officer will suspect that the driver is driving under the influence of alcohol or drugs (DUI).  That police officer can approach the vehicle, look into the window and investigate further.  The police officer can ask the driver to roll down the window so they can talk.  If the driver agrees or voluntarily exits the vehicle, this is considered a lawful and consensual encounter.

What often takes this scenario to the next level is if the driver does not respond for whatever reason or refuses to answer the police officer.  Normally, the police officer will then order the driver to turn off the vehicle or roll down the window or step out of the vehicle.  The police officer might park his/her vehicle behind the other vehicle preventing it from leaving.  The key to whether an encounter escalates into something requiring evidence of criminal activity is whether the subject reasonably feels like he/she is free to disregard the officer and leave.  In reality, when a police officer asks or tells anyone to do anything and that person refuses or ignores the officer, the officer is almost never going to let it go.  However, under the law, there are certain situations which qualify and certain that do not.  The examples I listed earlier in this paragraph are generally examples of commands that change the encounter to a seizure and require at least reasonable suspicion of criminal activity.  If the police officer looks into the vehicle, asks questions and the driver ignores the police officer, the officer cannot command the driver to exit the vehicle without a legal basis.  At this stage, the police officer must be able to point to some facts suggesting a crime is being committed, which would be difficult to do in the DUI context if the window is up.

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Most people have heard of the “black box” or “event data recorder” after airplane crashes.  It is a device that records information about the plane that helps investigators determine how and why a crash occurred.  What many people may not know is that cars often have black box recorders as well.  Most cars manufactured in the last few years come equipped with the black box recorder.  The data on these devices can be used to determine the speed of a vehicle, steering and braking information and other data that can also help determine why a motor vehicle crash occurred.

The black box data could be useful to police in investigating certain crimes.  For instance, that data could help the police investigate a DUI manslaughter case, a fleeing and eluding case or an aggravated battery with a motor vehicle case.  However, the police cannot just go into a person’s vehicle and collect that data.  The police might be able to seize a person’s vehicle if it is evidence of a crime.  Alternatively, the police might take custody of a vehicle rather than leave it on the side of the road after arresting the driver.  In these situations, the police are normally permitted to search the vehicle as part of a legal inventory search- a search of the vehicle to make sure nothing dangerous is in the vehicle and make sure the suspect’s property is inventoried and kept safe to return to the suspect when the case is finished.

The black box data are different.  Collecting that data is more complicated than searching the vehicle and removing personal items for safekeeping.  The key to whether the search warrant requirement is triggered is whether the suspect has a reasonable expectation of privacy in the area or thing to be searched.  Florida courts have held that people have a reasonable expectation of privacy in their vehicles and the interior of their vehicles.  Florida courts have also ruled that people have a reasonable expectation of privacy in electronic storage devices such as cell phones, Ipads and computers.  A black box recorder falls into both of these categories.  As a result, if the police want to obtain the data in these black box recorders that are relevant to a crash that involves criminal activity, the police will either need to get a search warrant for the data or get consent from the owner of the vehicle.  Failure to do so will likely result in all of the evidence from the recorder being inadmissible in court.

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In Florida and elsewhere, when a suspect is arrested, he/she has a constitutional right to remain silent and consult a lawyer before making any statements or making any important decisions about the case.  In fact, for just about every defendant in a criminal case, this is exactly what a suspect or defendant should do.  It is exceedingly rare for a person to make a statement to the police at that early stage, with such limited information and without the advice of a criminal defense lawyer, and it doesn’t do anything but hurt the defendant’s case.

As part of this right to remain silent and consult a criminal defense attorney, the police are required to read the Miranda warnings to a suspect who is in custody before any request to speak with him/her about the case.  These warnings inform the suspect that he/she has a right to remain silent and a right to a criminal defense lawyer.  If the suspect invokes those rights, the police cannot question the suspect about the case.

However, even when a suspect exercises his/her right to remain silent and requests a criminal defense attorney, the police can still ask certain questions about the suspect as part of the arrest and booking process.  The police are still permitted to ask biographical and routine booking questions.  For example, when the police arrest someone, they fill out reports and enter the suspect’s information into their system.  They can ask questions relating to physical characteristics, age, address, date of birth, place of employment and similar identifying characteristics.  The police cannot ask questions that are designed to elicit information about the case.