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In Florida and other states, a person has a right to privacy in his home, automobile, personal effects and other property. This means that the police cannot just search a person or his/her property based on suspicion or because they feel like it. However, the rules are different for people on probation.  If a person is arrested and charged with a crime, pleads guilty or is convicted at trial and is then put on probation, the state has much greater access to that person and his/her property than a regular person.

In a case just south of Jacksonville, Florida, the defendant was on probation for attempted sexual battery on a child. He was put on probation after he served time in prison. While on probation, he was required to fulfill certain conditions, and he had a probation officer who supervised him. While on probation, his probation officer came into his home and downloaded his cell phone data without a search warrant or consent.

Obviously, a police officer or anyone from the state cannot enter a person’s home and/or search his cell phone without a search warrant or specific consent under normal circumstances. However, this involved a person on probation for a serious crime.  Upon searching his phone, the probation officer found information that indicated the defendant had violated his probation. A warrant was issued for the violation of probation.

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In Florida, the state constitution provides that medical records are private and protected from discovery by the state. In order to obtain a defendant’s medical records, the state must prove that the records are relevant to the case. The state is not permitted to subpoena a defendant’s medical records at its own discretion.

In a case near Jacksonville, Florida, there was a motor vehicle crash, and the driver of the vehicle that caused the crash fled the scene. The police developed evidence that the defendant was the driver who caused the crash and fled the scene. They determined he had a suspended license. He was charged with felonies for hit and run and driving with a suspended license and causing a serious injury. The state learned that the defendant went to the hospital after the crash. The state tried to get the defendant’s medical records from the hospital to determine if he was impaired at the time of the crash. Toxicology records would likely indicate whether the defendant had alcohol or drugs in his system.

The criminal defense lawyer objected to the request for the defendant’s medical records arguing that medical records are private under the Florida constitution, and they were irrelevant to the pending charges as the defendant was not charged with DUI (driving under the influence of alcohol or drugs). Initially, the court ruled that the state could get the defendant’s medical records because they could be used to impeach the defendant. The criminal defense attorney appealed and won. The appellate court ruled that to overcome the right to privacy, the state must prove the medical records are relevant to an ongoing investigation or case. The state must show a nexus between the records and a material issue in the case. Because the state did not have evidence of a DUI, and the defendant was not charged with DUI, his medical records were not relevant to the case and could not be subpoenaed by the state.

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In Florida, it is pretty clear that the sale of an illegal drug is a felony crime. Selling some drugs is more serious than others. While police and prosecutors continue to waste time and taxpayer money arresting and charging people with selling marijuana, at least that crime is not considered very serious, depending on the quantity. However, selling heroin or fentanyl is considered a serious crime which often carries serious jail or prison time. The more that is sold, the more serious the crime, generally.

Normally, if a person sells one drug amount to a person one time, that is a single crime that carries a single sentence. Multiple sales, even to the same person, can each be considered separate crimes if they are separated by a sufficient time period.  Can a single sale of one substance to a single person be considered two crimes?

In a recent case south of Jacksonville, Florida, the defendant sold a single drug quantity he believed to be heroin to an undercover police officer. He was arrested on one count of sale of heroin, which is a second degree felony that carries a maximum sentence of 15 yeas in prison. In drug cases where a defendant requests a lab report or where the case may go to trial, the state will send the drug sample to the crime lab to be tested for composition and weight. In this case, the lab report showed that the substance contained heroin and fentanyl. As a result, the state charged the defendant with two separate counts- sale of heroin and sale of fentanyl although the defendant just sold one substance one time. Both charges are second degree felonies and fall under the same Florida statute.

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In Florida, many criminal arrests begin as traffic stops.  Most DUI’s begin this way along with other, more serious charges. As a result, a criminal defense lawyer should always look at the initial stop and how it occurred to see if there might be a search and seizure issue that could be the basis of a motion to suppress.  Police can normally stop a driver for violating a traffic law such as speeding or running a red light. However, it is not uncommon for the police to stop a driver for more vague traffic infractions like the failure to maintain the lane, particularly in driving under the influence of alcohol or drugs (DUI) cases.

In a recent case near Jacksonville, Florida, the defendant was pulled over for failure to maintain her lane on two occasions. The police officer ultimately searched the vehicle and found marijuana inside. The defendant was arrested for possession of marijuana. The criminal defense attorney filed a motion to suppress the evidence of the marijuana based on the argument that the police officer did not have a legal basis to pull the defendant over.

The court agreed with the criminal defense lawyer. At the motion to suppress hearing, the police officer testified that the defendant did not impact any other vehicles, pedestrians or anyone else when she veered out of her lane two times. The relevant Florida statute says that when a roadway has been divided into two or more marked lanes, the driver should drive entirely within a single lane as nearly as practicable and shall not move from that lane unless it is clear such movement can be made safely. The courts in Florida do not find that a driver has violated this statute unless there was evidence that the driver or any other person was endangered. Therefore, if a driver crosses over a solid white or yellow line periodically but no other driver or person was impacted, it would not likely be a violation that would warrant a traffic stop. The police must establish some sort of safety concern caused by the driver crossing the solid line.

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In Florida, the criminal laws are created by the state legislature. They are laws that prohibit certain conduct, and a violation of those laws can result in an arrest and jail time. Police are allowed to search a person after an arrest for a state crime. If the police find other or additional evidence of criminal activity during that search incident to an arrest, they can likely use that evidence against the defendant to support the arrest and/or add additional criminal charges. Cities in Florida can also enact laws that address certain conduct.  These laws can also come with penalties that include relatively short periods of time in jail.  For instance, fighting and loitering  are municipal ordinances in Jacksonville, and a violation of either ordinance can result in some jail time.

However, the same search and seizure rules do not apply to municipal ordinances as for state and federal crimes. In a recent case south of Jacksonville, Florida, police found the suspect in a city park after it closed at 11:00 p.m. The police officer arrested the suspect for being in the park after hours. This was not a state crime but a municipal ordinance violation. After the arrest, as they always do, the police officer searched the suspect. The police officer found a concealed handgun, cocaine and marijuana. The suspect was then charged with felony and misdemeanor crimes based on the evidence found after the municipal ordinance arrest.

The criminal defense lawyer filed a motion to suppress all of the evidence based on the search incident to a municipal ordinance arrest. The court noted that the police are not allowed to go through a full custodial arrest and search for a violation of a municipal ordinance, like they can for actual criminal law violations. They can “arrest” or detain a suspect for a brief period of time in order to write a ticket or issue a notice to appear in court at a later date. However, the suspect is not taken to jail. As a result, the police are not permitted to conduct a search incident to an arrest in these cases. Therefore, the search of the defendant was unreasonable, and the charges related to the gun, marijuana and cocaine were thrown out.

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In Florida and elsewhere, people have a constitutional right to privacy, and this protection is greatest in one’s home. As a result, the police generally cannot search a person’s residence without consent from someone with authorization or a valid search warrant. If the police do get a valid search warrant signed by a judge, that does not give them free rein to search anything and everything belonging to the suspect. The search is limited to what is reasonable and the area identified in the search warrant.

In a recent drug possession case south of Jacksonville, Florida, the police obtained evidence that the defendant had illegal drugs in his home. The police went to a judge and obtained a search warrant for the residence. The address of the residence was listed on the search warrant, and it was described as a single story residence. The search warrant authorized the police to search the residence, the curtilage of the residence (the area surrounding the home), any vehicles on the premises and any people at the premises. That is fairly common for search warrants. When the police arrived to the property, the saw an RV on the property and searched it. They found illegal drugs inside.

The criminal defense lawyer filed a motion to suppress the evidence found in the RV arguing that police did not have authority to search the RV based on a search warrant of the permanent residence that did not mention the RV. The state pointed out that a search warrant of a residence and its curtilage often allows police to search enclosed areas around the house, such as a shed or a vehicle on the property. However, search warrants are limited to the place described in the search warrant. Police officers are not authorized to search separate dwelling units on the property that are not listed in the search warrant. So, the question becomes whether the RV is apparently being used as a separate dwelling. The court looked at where it was located, who owned it, whether it was affixed to the ground, whether there was a utility hookup, whether it was occupied and other factors. If it was reasonable to believe the RV was being used as a separate residence, the police could not search it since it was not mentioned in the search warrant. However, if it appeared reasonable to believe the RV was being used as a vehicle and was on the property mentioned in the search warrant, then the police probably would have been authorized to search it. In this case, the evidence indicated the RV was a residence so the search was unlawful, and the evidence found in the RV was suppressed.

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With some exceptions, police officers are generally only allowed to investigate crimes and make arrests within their jurisdictions. A Jacksonville Sheriff’s Office employee isn’t normally allowed to drive into St. John’s County and pull people over who he suspects of driving under the influence of alcohol or drugs. Additionally, off-duty police officers are not normally allowed to investigate cases or make arrests.

However, in a case south of Jacksonville, Florida, a police officer ended his shift and was driving to his house, which was in a different county. Another vehicle was swerving and almost hit the officer forcing him to leave the roadway. The officer turned around and started following the suspect. The police officer observed him swerving all over the road. The police officer pulled the suspect over to investigate for DUI. He called a local police officer who took over the investigation and did ultimately arrest the suspect for DUI.

The criminal defense lawyer filed a motion to suppress the evidence of DUI arguing that the initial police officer illegally pulled the defendant over since he was off-duty and out of his jurisdiction. The state argued that the police officer made a lawful citizen’s arrest. In other words, the state treated the case as if the police officer was a private citizen. Citizens are allowed to make arrests in Florida if they witness a person commit a felony crime or the crime of breach of the peace.

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In Florida, the police usually attempt to substantial a DUI (driving under the influence of alcohol or drugs) arrest by asking the suspect to take a breathalyzer test. This is a test normally administered at the jail only after the suspect has been arrested. The purpose of the test is never to determine if the suspect is impaired; it is always to secure more evidence against the suspect. In other words, if a DUI suspect agrees to submit to the breathalyzer test at the jail and blows under the Florida legal limit of 0.08, the police will not let that suspect go. On the other hand, if the suspect blows above 0.08, the state will always attempt to use that evidence against the suspect in court.

The police have other tests to try to create evidence. Sometimes, under certain circumstances, the police can take blood that is later tested for alcohol or drug content. There are specific rules that determine when a blood test is appropriate. The police can also request a urine test in certain situations. In a case just south of Jacksonville, Florida, after the suspect was arrested for DUI, the police officer asked if the suspect would submit to a breath or urine test. The suspect agreed to give the urine sample. The urine sample was given in a fairly private setting and under the supervision of a female police officer.

The criminal defense lawyer filed a motion to suppress the urine test results arguing that the police needed a search warrant to obtain a urine sample for a standard DUI case. The criminal defense attorney argued that giving a urine sample is an unnecessary invasion of a person’s privacy. The court noted that, unlike blood samples, which require a needle and puncture of the skin, giving a urine sample is a fairly non-intrusive process. On the other hand, a urine sample can be tested for a wide range of substances while breath can only be used to test alcohol content. The court agreed that giving a urine sample implicates a person’s right to privacy, however the state’s interest in obtaining evidence, whether that involved alcohol consumption or the use of drugs, outweighed those privacy interests. The court held that the police could request the urine sample without a search warrant since they had probable cause to arrest the suspect for DUI and allowed the state to use the urine test results against the defendant in court.

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In Florida, a person or business may not engage in the money services business unless the person or business is licensed or exempt from being licensed by the state of Florida. A violation of this law involving more than $300 is a felony crime. A money services business is defined by Florida statutes as a person or business that acts as a payment instrument seller. A payment instrument is a check, money order, electronic instrument or similar instruments to exchange tor goods and services. Basically, it is anything of monetary value.

In a case south of Jacksonville, Florida, the police identified a person who would buy and sell bitcoin for cash. Presumably, the police targeted this person because they believed he would accept stolen credit cards and other forms of illicit payment in exchange for bitcoin. Bitcoin is an anonymous form of currency so law enforcement may be concerned about people who transact business with this digital currency. A police officer made a few undercover purchases of bitcoin from the subject for cash. They subsequently arrested him because he was not licensed to do business as a money transmitter. Clearly, someone cashing checks or changing foreign currency for US currency would fit within the definition of a money transmitter and need a state license.  In this case, the criminal defense attorney argued the defendant was not subject to this law and did not need to obtain a money transmitter license because bitcoin did not fall under the definition of a payment instrument. Bitcoin was not invented when the Florida money transmitter statute was created so the statute could not have contemplated the inclusion of bitcoin.

Bitcoin is fairly complicated, but it can be described as a system that allows payments to be made through a decentralized process that does not involve a bank. It is a digital currency that is produced electronically by computers. All bitcoin transactions are recorded on a ledger, and each block in this chain of transactions is encrypted. Bitcoin can be stored or exchanged on this ledger that is completely open so all transactions can be verified. So, it is certainly not money or currency in the traditional sense. However, the court did not limit its analysis to whether this digital currency was “money”. The court looked at the fact that bitcoin can be exchanged like money and had monetary value.  In fact, there are many businesses who accept bitcoin, although not as many as before when bitcoin had much higher value. While the criminal defense lawyer wanted the court to focus on the fact that bitcoin does not resemble actual money, perhaps making an argument about the tangible nature of money, the fact that bitcoin can be and is used to pay for goods and services and a market exists to exchange bitcoin for traditional currency doomed that argument.

 

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In Florida, as in other states, police are generally not permitted to enter a person’s property with a valid search warrant or explicit consent from the owner or resident of the property.  There are limited exceptions that do permit the police to come into a person’s home without a search warrant or consent.  Exigent circumstances can be an exception to the general rule if the police have specific evidence of an emergency situation that requires immediate police attention, and it is not feasible to take time to get a search warrant or consent. For instance, if the police receive a legitimate call of shots fired inside a house and show up hear indications of a fight or an injured party, they would likely be permitted to enter the house to address that issue. However, these exceptional searches are limited in time and scope.  The police are only permitted to enter the home for the purpose of investigating and handling the emergency situation. They are not allowed to roam around the property searching for things unrelated to the emergency. On the other hand, if the police see evidence in plain view as they deal with the emergency situation (i.e. illegal drugs out in the open), they are not required to ignore that. In those cases, the police would normally be required to obtain a search warrant based on the evidence they observed while in the home addressing the emergency.

What constitutes valid exigent circumstances depends on the particular case. In an animal cruelty case just south of Jacksonville, Florida, the police received a call about a suspect beating his dog. When the police arrived, they saw the suspect in the back yard and heard what sounded like strikes against someone or some thing. The suspect admitted to hitting his dog but said he did it because the dog bit him. The suspect refused to allow the police inside, but they went in anyway. The police found that the dog was dead and evidence the dog had been abused. The suspect was charged with felony animal cruelty.

His criminal defense lawyer filed a motion to suppress evidence of the dog, other evidence found in the house and the defendant’s statements because the police did not have a right to enter his home without a search warrant or consent. He argued the medical emergency exception to the general rule did not apply to animals. The court disagreed. In Florida, a medical emergency involving an animal is sufficient to allow the police to enter a home under exigent circumstances if the police have enough evidence to establish an immediate need to check on the animal.  Because the police had a right to check on the dog, once they saw the dog was dead and the suspect admitting to killing the dog, they had sufficient, admissible evidence for an animal cruelty case.