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In Florida, one exception to a search warrant requirement is consent to search from the owner of the property or someone in possession of the property who appears to have authority to give consent.  Police can generally walk up to any person, vehicle or residence and ask to search without a warrant and without probable cause. If that property owner agrees, the police are free to search.  However, there are limitations, and people should always understand they have a constitutional right to refuse any police request to search one’s property.

In this case, police officers drove to the defendant’s property in a rural area south of Jacksonville, Florida. They went through an open fence and ignored the “No trespassing” signs.  They knocked on the front door, but no one answered.  The officers then got back into their vehicle and kept driving on the property to a barn where they found marijuana. They ultimately arrested the property owner for various marijuana charges.

The criminal defense attorney filed a motion to suppress all of the marijuana evidence because the police did not have a right to come onto their property and search it.  At the hearing, the police officers testified they previously had permission to enter the property. It was determined during the hearing that the permission was given three years earlier by the previous property owner.

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In a criminal case just south of Jacksonville, Florida, the defendant was arrested for possession of a firearm by a convicted felon after an employee at a restaurant called the police and reported that he appeared to have a gun in his waistband. There was no indication the defendant pulled out a gun, was acting in a suspicious manner or used or held it in a threatening manner. When the police arrived, they saw a bulge in the defendant’s waistband but could not tell it was a gun. The police officer patted the defendant down and discovered the gun. Afterwards, they determined that the defendant was a convicted felon.

The criminal defense lawyer filed a motion to suppress the evidence of the gun because it was not a legal search. In order for the police to legally search a person, or just pat a person down for weapons, the police must, at a minimum, have reasonable suspicion that the person is involved in criminal activity. In order for the police to conduct a stop and frisk, the police must have reasonable suspicion that the person is armed and dangerous.

In this case, the police did not have reasonable suspicion of criminal activity. It is not illegal to carry a gun in Florida.  Therefore, the fact that a person has a gun in public is not evidence of criminal activity.  It might be illegal for a person to carry a concealed weapon in public, but only if that person does not have a concealed firearms permit. When the police stopped and patted the defendant down, they did not know whether or not he had a concealed firearms permit. Therefore, they did not have evidence he was committing a crime even if they knew he had a gun concealed in his waistband.

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With the proliferation of social media, the state has an extra tool it can use to obtain evidence and prove cases in court. At this point, people should understand that posting information on the internet, whether pictures, conversations, documents, etc., does not come with a reasonable expectation of privacy. The police or prosecutors can subpoena information from internet service providers or simply go on a defendant’s social media page and print off or download incriminating information.  The bottom line, whether in relation to a criminal case, a civil case or just generally- do not post things on the internet that you would not want the police or the general public to see.

For example, in a case just south of Jacksonville, Florida, the police were investigating two auto thefts that happened in similar locations within an hour of each other. The police developed suspects for the two auto thefts and ultimately obtained one of the suspect’s cellphones. They obtained a search warrant for the phone and saw Facebook postings showing two defendants in the stolen cars. One of the defendants was wearing one of the victim’s watches.  The videos were posted on Facebook shortly after the second auto theft. The victims were able to identify the suspects through the Facebook videos.  Both defendants were convicted based on the Facebook videos.

This was a fairly extreme example of stupidity on the part of the defendants, but people do post things on the internet that implicate them in crimes or negatively affect civil cases.  It may not be as obvious and direct as this, but it does happen, and police, prosecutors and parties in lawsuits do check Facebook pages and other social media to try to find evidence that helps their cases. In Florida, as long as the internet evidence is legitimate and unaltered, it very likely may be used as evidence in court.

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In most DUI (driving under the influence of alcohol or drugs) cases in Florida, the police arrest a person they believe is driving while impaired. That DUI suspect is taken to the jail and booked. Only after the suspect is taken to the jail do the police ask the suspect to take a breathalyzer test to test the suspect’s blood alcohol level.  In some cases, where the breathalyzer test is not practical, often when there is an accident and the suspect is taken to the hospital, the police will request a blood draw to test that blood for alcohol content.

A DUI suspect may refuse a breath test or a blood test.  Due to the implied consent laws in Florida, a refusal may come with certain consequences (such as a longer driver’s license suspension and the state trying to use the refusal as evidence in court), but the suspect cannot be forced to submit to a breath, blood or urine test as a general rule.

However, if the DUI suspect refuses the breathalyzer or a blood or urine test, the police may try to get a subpoena for the blood that they can send to the lab to test for alcohol content.  Alternatively, the state can try to subpoena a person’s medical records in cases where a suspect went to the hospital after a crash, and the hospital tested the suspect’s blood for alcohol or drugs.  It’s not something we see often, but a subpoena is a tool the police and the state have to obtain evidence when it is otherwise difficult or impossible for the state to get that evidence. In a DUI case, that evidence can be the difference between a strong case and a weak case.

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In DUI cases, the police generally observe a driver break some traffic law and then initiate a traffic stop. If the police officer claims to observe evidence that the driver is drunk or otherwise impaired, that officer will start a DUI investigation.  However, the police officer in Florida does not have unlimited time to establish probable cause to make a DUI arrest. If there is an unnecessary and lengthy delay during this DUI investigation, further evidence of impairment can be suppressed.

In a DUI case just south of Jacksonville, Florida, a police officer stopped the defendant for failing to maintain his lane. The officer approached the defendant and determined that there was evidence that he was impaired from alcohol. For some reason, the first officer did not continue with any DUI investigation and called other officers to the scene. The next police officer to arrive did not have a video camera in his car so another officer was called.  Twenty-five minutes after the initial stop, the officer who conducted the DUI investigation arrived to investigate the DUI. Three minutes later, he started his DUI investigation. Nothing was done during that time to advance the DUI investigation. The defendant was kept in his vehicle at the scene waiting for 28 minutes. After the DUI investigation was completed, the defendant was arrested for DUI.

The criminal defense lawyer filed a motion to suppress all of the evidence of the DUI investigation because the defendant was kept at the scene for an unreasonable period of time without evidence that he had committed a crime. That evidence did not come until at least 28 minutes after the initial traffic stop. The court agreed and suppressed the evidence.  There is no bright line rule in Florida which says how long the police can keep a DUI suspect at the scene. It depends on the circumstances of the case- for instance, the reason for the delay, how much evidence the police have of DUI at each stage of the process and the length of the delay.  However, in this case, there did not appear to be a legitimate reason for the delay to start the DUI investigation so 28 minutes was considered too long of a detention. If the detention is unreasonably lengthy, it is unlawful, and if it is unlawful, evidence obtained during that detention is not admissible.

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People ship drugs to other parts of the country.  They do it using the US Postal Service and Federal Express and UPS and any other delivery service. They do it by shipping to a location where nobody lives expecting someone on the other end to pick it up as soon as the package arrives. Other times, they ship it to a known address but address the package to a fake name so the person who receives it can claim ignorance if the police find out. And there are other methods people use to send illegal drugs to other people. The police catch many of these packages.  Many of these packages have similar appearances and methods of shipment.  Law enforcement also use drug dogs at the shipping facilities to smell packages (particularly those from states where marijuana is now legal). When they find a package that contains illegal drugs, they will attempt a controlled delivery which often consists of a police officer pretending to be a deliveryman and delivering the package to the listed address.  Once a person at the address accepts the package, police will come in and make arrests.

In a recent case near Jacksonville, Florida, the police discovered a suspicious package at UPS and decided to investigate. They learned that it was addressed to a fake person. They got a search warrant to open the package and found marijuana inside. One of the police officers disguised himself as a UPS driver and attempted to deliver the package, but no one answered the door. Later, the police knocked on the door to try and interview the resident.  As they did so, an individual drove up to the residence. The police detained that individual and asked him questions to see if he was involved with the marijuana package. The police brought a drug dog to the scene and had the dog walk around the person’s vehicle. After alerting to that vehicle, the police searched it and found marijuana and other drugs inside.

The criminal defense lawyer filed a motion to suppress the evidence of the drugs found in the vehicle because the police did not have a legal basis to detain and keep the defendant at the scene. While the defendant did ultimately consent to a search of his car, it was after the detention which the criminal defense attorney argued was illegal. Consent is not voluntary if it is the result of an illegal detention.

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A recent court decision, Wilson v. State, 43 Fla. L. Weekly D715a (Fla. 2d DCA 2018), resulted in the reversal of a conviction and the suppression of a confession in a case involving illegal and outrageous police conduct.  This opinion is a scathing indictment on the tactics used by law enforcement in an unlawful effort to obtain a confession.  After Wilson’s criminal defense attorney filed a motion to suppress his statements, which was denied by the trial judge, Wilson was convicted at trial based on little more than his own confession.  Wilson appealed to the Second District of Florida.  Let’s see how this played out…


What did the officers do?


Law enforcement had information that Wilson was involved in an armed robbery of a pizza joint.  They believed that he was the getaway driver.  So, they asked to meet up with him at a local park.  Wilson agreed.  At the park, Wilson agreed to ride with the officers down to the station to discuss the robbery.  Wilson was placed in an interview room, but he was told that he could leave whenever he wanted and that they would drive him back to the park.  However, once in the interview room, things quickly turned.

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In Florida and other states, when the police arrest a a person they suspect is guilty of DUI (driving under the influence), the police will almost always ask that person to submit to a blood alcohol test. First, as many people are unaware, this request and the actual test in Florida almost always takes place after the suspect has been arrested and taken to the jail.  Therefore, if the suspect blows a low number, or even 0.0, the police are not likely to release, or “unarrest”, the suspect. That person is spending the night in jail regardless of a low or high alcohol reading.  Also, blood alcohol tests are normally administered in the form of a breath test, or breathalyzer.  After the arrest and once the person is taken to the jail, the suspect is taken into a room where the breathalyzer operator is located, and he/she is asked whether he/she will submit to the breathalyzer test.

There are DUI cases where it is not feasible to administer a breathalyzer test.  One example would be where the suspect is injured after an accident and taken to the hospital.  In that case, the police officer may be justified in requesting a blood draw so that blood can be sent to a lab and tested for alcohol content. However, the police in Florida cannot request a blood draw in every situation.

In a recent DUI case near Jacksonville, Florida, the defendant was in a serious accident. When the police arrived, the defendant was unconscious. He was taken to the hospital. The police officers at the scene of the crash said they smelled alcohol coming from the defendant and the vehicle. At the hospital, the police officer had the nurse draw blood from the defendant. After the blood was tested and found to have a blood alcohol content above the legal limit, the defendant was charged with DUI.

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In our last blog post, we discussed the problems and dangers of government abuse that come with mandatory minimum prison sentences for various crimes.  In this blog post, we will review a recent report from the United States Sentencing Commission which discusses the effects of mandatory minimum prison sentences from a more statistical perspective. This report focuses on federal crimes and federal criminal penalties, but the mechanisms and effects of mandatory minimum prison sentences are similar in the state and federal criminal systems.

In the federal system, using or possessing a firearm while committing a violent offense or certain drug offenses carries significant penalties. In 2016, defendants who were convicted of these 924(c) crimes were sentenced to more than 12 years in prison, on average. Some defendants are subject to a 15 year mandatory minimum prison sentence if they qualify under the Armed Career Criminal Act. Such defendants received just more than 15 years in prison, on average, which suggests the prosecutors were not waiving (i.e. allowing a defendant to plead guilty to a different charge that did not carry the mandatory minimum penalty) these mandatory minimum penalties very often. Defendants facing multiple counts under 924(c) received more than 27 years or 36 years, on average, depending on the number of charges.

Mandatory minimum prison sentences are obviously very harsh. In the federal system, there are very few ways to get out of a mandatory minimum prison sentence if a defendant pleads guilty or is convicted at trial. One way, relevant in certain cases, is what is called the safety valve provision.  Eligibility for the safety valve provision requires a defendant to qualify for several factors.  One is related to the defendant’s criminal history. Any defendant who has a somewhat recent or serious criminal history is not likely to qualify for the safety valve provision.  In fact, even people with more than one recent criminal conviction for minor crimes such as petit theft, possession of marijuana, DUI, etc. are likely to be disqualified from safety valve eligibility.

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In criminal cases in state and federal courts, one major landmine in getting cases resolved and trying to get fair results is crimes that carry mandatory minimum prison sentences.  There are few greater injustices in the criminal system than the advent of the mandatory minimum prison sentence.  Additionally, they are the source of a tremendous amount of wasted money and abuse by some prosecutors. The idea behind adding mandatory minimum prison sentences is that legislators (the people who make the laws) do not trust judges (the people who sentence defendants according to the laws) to order proper sentences in what they consider the more serious cases.   Mandatory minimum sentences are designed to tie the hands of judges so they cannot sentence a defendant to less prison time than a certain amount provided in the law if the defendant has been convicted of the qualifying crime. The obvious problem with these laws is that every case and every defendant are different and judges are supposed to consider the specific circumstances of each defendant and each case when determining a proper sentence.  The judges, after sitting through a trial or hearing the testimony of witnesses and arguments of the lawyers at a sentencing hearing, are informed of those relevant factors prior to making a sentencing decision.  Legislators in Tallahassee or Washington D.C. have no idea about the facts of a particular case or the mitigating circumstances of a defendant. Yet, it is those uninformed legislators making the ultimate decisions as to a floor for a defendant’s sentence.

The other, less obvious problem with mandatory minimum sentences is that they essentially take the power away from the judge, who is an impartial figure in the process, and puts that power in the hands of a prosecutor. Charging people with crimes that come with mandatory minimum prison sentences gives the prosecutor significant leverage to force a guilty plea out of a defendant who is arguably innocent. Why? Because while the judges have no power to go under mandatory minimum sentences (with a few exceptions in federal court), the prosecutor can always waive the mandatory minimum sentence or amend the charge to a different charge that does not come with a mandatory minimum prison sentence to strong arm a defendant into a plea.

We see this happen in the case of aggravated assaults with a firearm in Florida. If a person points a firearm at another in a manner that causes fear of serious bodily injury or death, that person can be charged with aggravated assault.  Aggravated assault comes with a three year mandatory minimum prison sentence in Florida when a firearm is involved. The problem is these cases often have issues.  Did the defendant point the gun or just have a gun? Did the defendant point the gun at the alleged victim because the alleged victim was initially threatening the defendant? Was this a valid case of self defense?  Quite often, these are very gray areas that do not have simple answers. Such ambiguous factual and legal issues may be best decided by a jury. It may be a close call or maybe the witnesses need to be fully cross-examined at trial to see if the state can really meet its burden that the defendant committed a serious crime that deserves a minimum of three years in prison. The defendant has that constitutional right to explore those details with witnesses under oath.  But the mandatory minimum sentences often effectively eliminates that right for defendants.