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That is kind of a convoluted title to the blog post, but essentially the police in this case tried to use the observation of a concealed handgun in the defendant’s vehicle as a legal basis to search the vehicle, find the concealed firearm and then charge the defendant with carrying a concealed firearm. It didn’t work. In Florida, it is a third degree felony to carry a concealed firearm on or about one’s person. That is a pretty general and somewhat vague law, but how this usually plays out is the police stop a vehicle, find some reason to search it and then find a gun that they say was not openly visible. This can also apply to a person carrying a firearm on his person that is not openly displayed and visible. In order for a person to carry a concealed firearm in his vehicle or otherwise, he would need to apply for and receive a concealed firearms permit from the state.

In this case near Jacksonville, Florida, the police officer approached a parked vehicle in a hotel parking lot that had a concealed license plate. When he approached the vehicle, he said he saw the defendant had the butt of a gun sticking out of his waistband. The police officer detained the defendant and then arrested him once it was determined that the defendant did not have a license to carry a concealed firearm. He was charged with carrying a concealed firearm.

The criminal defense lawyer filed a motion to suppress the evidence of the gun arguing that the police officer did not have a legal basis to detain the defendant and then search him. The police officer testified that he saw that the defendant was armed, but he could not articulate any evidence of criminal activity since the officer did not know whether or not the defendant had a concealed firearms permit at the time of the detention. The key here is that the police have to have some specific indication that the defendant is involved in criminal activity in order to detain and search a person. Having a gun is not necessarily a crime. Having a concealed firearm is not a crime unless the person does not have a license for it, which the police officer did not know at the time. Without some reason to believe the defendant was doing something illegal, there was no legal basis for the detention and search. What the police officer could have done, once he saw the concealed firearm, was ask the suspect if he had a license for it. If the defendant chose to answer and said no, then there would have been sufficient evidence to detain him and arrest him. Or, if the defendant had been doing something dangerous with the gun, like waving it at someone or threatening someone, that would have been sufficient to detain the person and possibly arrest him. However, the simple fact of having a gun may not be enough for a detention or arrest in Florida.

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In most DUI cases in Florida, all of the evidence the state obtains is from the traffic stop, the DUI investigation at the scene and then the breathalyzer test at the jail if the defendant agrees to submit to the breathalyzer. This normally involves whatever reason the police officer gives for the traffic stop, the police officer’s observations after the stop (which pretty much always include the same observations of odor of alcohol, slurred speech, bloodshot and watery eyes, swaying, etc) and a breathalyzer result if the defendant agrees to the breathalyzer test. However, there are cases where more evidence may be available. For instance, if the defendant goes to the hospital for whatever reason during the course or after the arrest, the police may request a blood draw at the hospital to check for blood alcohol content or the medical personnel may seek their own blood draw for diagnosis and treatment purposes. In the latter case, the state may try to obtain those medical records to find out about blood alcohol content and learn whatever other incriminating information might be in the medical records. And they often obtain those records with a simple subpoena rather than a search warrant that has to be reviewed and signed by a judge.

In a recent case just south of Jacksonville, Florida, the police responded to the scene of a crash. The police investigated the defendant for DUI and reported the standard DUI observations. The defendant then agreed to submit to field sobriety tests, which is normally a terrible idea after a crash. These are very subjective tests graded by a person who likely already has decided the defendant is drunk. Additionally, these tests are even more difficult after a person may be disoriented from a traffic accident. The police will usually attribute any alleged mistakes to being impaired from alcohol or drugs rather than impaired or injured from the recent crash.

Due to the defendant’s condition, after the DUI arrest, the police took the defendant to the hospital to check him out medically. The state later subpoenaed those medical records from the hospital. The criminal defense lawyer objected based on the fact that medical records are private and legally protected. Despite that privacy and legal protection, the state can obtain medical records via subpoena if those records are relevant to a criminal investigation. One of the arguments was that the defendant did not ask to go to the hospital so the medical records were created as a result of unilateral state action. The court rejected these arguments. The relevance required to obtain these medical records in an ongoing criminal case is a very low standard. The court essentially said the medical records from the time of a DUI arrest will almost always be relevant. The court allowed the disclosure of the defendant’s medical records but only records related to blood alcohol content and observations from medical personnel regarding the defendant’s impairment.

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In Florida, robbery by sudden snatching is a crime that involves a person takes the property from the victim’s person when the victim is aware of the taking. Robbery by sudden snatching is a serious charge as it involves the possibility of violence and fear by the victim. However, the charge itself does not require any more force than what is required to take the property, and it does not require the victim to resist. Robbery by sudden snatching is a third degree felony and one of the more serious ones.

In a recent Jacksonville, Florida case, the defendant reached into a vehicle and stole two phones that were on the dashboard. The victim was in the driver’s seat, but was not in actual possession of the phones at the time. It was alleged that the defendant made some contact with the victim as he grabbed the phones.

The criminal defense attorney argued that this could not be robbery by sudden snatching since the victim did not have the phones on him at the time. The jury found him guilty, but the conviction was reversed by the appellate court who noted that actual possession of the property by the victim was a requirement of that statute. If the defendant makes contact with the victim as he takes property that is not on the victim, that is not enough for a robbery by sudden snatching conviction.

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A lot of drug possession and trafficking of drug cases in Florida involve police finding drugs not on the defendant but near him or even somewhere far away from the defendant. There are two types of possession cases in Florida that can be the basis of a drug possession or trafficking conviction. Actual possession is usually simple. If a person is carrying the drugs or has them on his person, that is usually enough to prove actual possession. But, Florida law does not require the drugs to actually be on the person for a drug possession conviction. Constructive possession can also result in a criminal conviction if the state can show that the defendant knew of the existence of the drugs and had some ability to control them. All such cases will depend on the specific circumstances and what each side can prove.

In a recent drug possession case west of Jacksonville, Florida,  police stopped the defendant for driving with a suspended license. The defendant was the driver and owner of the vehicle, and there was one front seat passenger. The police, who surely had prior information about the defendant, had a drug dog ready to walk around the vehicle. The drug dog alerted to the odor of illegal drugs, and the police searched the vehicle. They found a safe under some clothes in the backseat. The police forced open the safe and found various drugs inside, including heroin and methamphetamine. They also found receipts, bills and other documents in the name of the defendant in the safe. He was charged with various drug possession charges.

At the trial, the criminal defense lawyer filed a motion for judgment of acquittal arguing that the state could not prove the defendant was in actual or constructive possession of the drugs since they were locked in a safe in the backseat. The legal standard is whether the state produced competent and substantial evidence that the defendant was guilty. The court found that the state presented sufficient evidence because the drugs were in a car owned and driven by the defendant and had papers inside the safe belonging to him. Apparently, the defendant did not have a valid explanation for how his belongings got into the safe with the drugs without him knowing the drugs were there. While there was a passenger in the car that the defendant could blame for the drugs, neither the car nor any items in the safe with the drugs belonged to that passenger. As a result, that defense was not found to be credible. The conviction against defendant was upheld.

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Florida law distinguishes between traffic violations that are civil and can only result in a fine or possible driver’s license suspension and traffic violations that are criminal and can result in charges and even prison time. Sometimes, there is overlap. For instance, if a person gets a DUI, the DHSMV will get involved and often issue a license suspension, and there will also be a criminal case that can involve a separate license suspension as well as other penalties. Very poor driving can result in a careless driving traffic ticket which comes with a fine or a criminal charge of reckless driving which comes with criminal penalties and a possible automatic license suspension. If someone is injured or killed as a result of someone else’s negligent or bad driving, that could either be a civil traffic case or a criminal case, or both.

In a recent case south of Jacksonville, Florida, the defendant committed a traffic violation that resulted in a crash. At the time, there was no fatality so he was given traffic citations which indicated no serious injury or death. Whether it was a mistake by the police officer or someone died later due to the crash and injuries, there was a fatality and the state later sought to charge the defendant with a traffic infraction involving death.

At the scene, the police officer did not have the defendant sign the citations. Florida law requires a signature by the defendant for any traffic infraction that requires a court appearance or any traffic violation that results in a criminal charge. In this case, the defendant did not appear in court because he was not given and did not sign any citation indicating a court date was required or there was a criminal charge related to the incident. The defendant had a criminal defense lawyer appear for him at a court date, but that was not the same as the defendant’s appearance so the requirement for a signature was not waived. At the court appearance, the state tried to upgrade the charge to reflect the fatality. However, the criminal defense attorney objected since there was no signature on the citations. The court agreed. Since there was no signature, there was no requirement for the defendant to appear in court. Since the defendant was not in court, the court did not have jurisdiction over the defendant to upgrade the charges against him in his absence. As a result, the defendant’s criminal defense lawyer was allowed to resolve the case with the civil traffic violation with no fatality at that court appearance and not face more serious charges.

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In most DUI (driving under the influence of alcohol or drugs) cases in Florida, the police officers will conduct their routine (and highly subjective) DUI investigations after a traffic stop, which includes a request for field sobriety tests at the scene and then a request for a breathalyzer test at the jail after the DUI arrest. However, some DUI cases are handled differently due to the circumstances, and the state will try to obtain evidence of impairment a different way.

In a DUI case south of Jacksonville, Florida, the police learned of a vehicle that was involved in a crash where the driver then fled the scene of the crash. The police had the license plate number of the vehicle and went to the owner’s address. At that address, they saw the vehicle involved in the crash, but the owner was not there. An occupant of the residence told the police that he left in a different vehicle. The police then went to search for that vehicle. When they found it, the police made a traffic stop and conducted a DUI investigation at the scene. The police officer made all of the standard observations at the scene (odor of alcohol, swaying, slurred speech, bloodshot and watery eyes, etc.) and arrested the defendant for DUI. As he was being arrested, the defendant claimed he was having medical problems. As a result, the police took him to the hospital where medical personnel took a blood sample for the purposes of diagnosis and treatment.

The state later sent a subpoena to the hospital to obtain those medical records to see the blood alcohol content. The criminal defense lawyer objected, but the court allowed the subpoena and evidence of the medical records. The court determined that the medical records were relevant to the DUI investigation which was the legal standard since this was not a blood draw elicited by the police for the purposes of the DUI case but a medical blood draw elicited by the medical personnel for diagnosis and treatment. If the court determines the medical records are relevant to the DUI case, the criminal defense attorney would have to show bad faith by the state to keep that evidence out of the case.

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In Florida, police officers are generally able to stop vehicles when those drivers commit traffic violations. This does not necessarily require a moving violation such as speeding or running a red light. It could also involve some problem with the vehicle itself. Once the police officer stops the driver for the traffic violation, the police officer may be able to investigate an alleged crime, if the officer finds specific evidence that a crime is being committed.  This is how many DUI and drug arrests start.

However, not all police stops based on traffic violations are legitimate. In a case south of Jacksonville, Florida, the suspect was driving with one of his tail lights broken. The covering to the light was broken so that the light was white when illuminated. When the police officer approached the vehicle, he smelled marijuana and ultimately arrested the driver for possession of cannabis/marijuana.

The criminal defense lawyer moved to suppress the evidence of the marijuana arguing that the initial stop was illegal. In Florida, the general rule is that traffic stops are valid when a driver is committing a traffic violation. In Florida, it is illegal to drive a vehicle that is in an unsafe condition or does not contain parts, such as lamps, in proper condition. In this case, the defendant argued that three of his four tail lights were working fine. So the question was whether the vehicle, with one broken tail light but others that worked, was in an unsafe condition. Since the stop happened in the morning during the daylight and the police officer could not specifically describe what was unsafe about the vehicle, the court ruled that the vehicle was not in an unsafe condition, therefore the stop was invalid. Since the stop was not legal, the search and seizure of the marijuana after the stop was also illegal. However, the court was clear that these cases would be decided on a case by case basis depending on the specific circumstances. A condition of the vehicle may be considered ok in one situation, while the same condition might be considered unsafe in other circumstances or based on the opinions of different judges.

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Most of the criminal laws people know about are laws that are promulgated by state legislatures or Congress. However, cities and counties can also enact laws that make certain conduct illegal. But not all of these city or county laws allow the police to arrest someone for a violation. Apparently, not all police officers know that. In a case south of Jacksonville, Florida, the suspect was sitting on a park bench late at night. Apparently, the county had an ordinance making it a violation for a person to engage in any activity in contradiction to a posted sign. The park had a sign saying the park was closed after dark. So, the police officers arrested the suspect for being in the park after dark and searched his backpack. They found a small amount of fentanyl in his backpack, and he was later charged with possession of a controlled substance.

Normally, when the police make a valid arrest, they are permitted to search the person and his immediate belongings. This is a search incident to an arrest, and the idea is that police are permitted to search a person and what he is carrying after an arrest because the police need to know if someone they are taking into custody has anything dangerous or illegal on him. This is a standard search that is difficult to challenge unless police use it as an excuse to search things away from and not connected to the suspect.

However, the problem here was the arrest itself. There was a county ordinance and the suspect was in violation of it by being in the park after dark, but the ordinance only allowed for a fine for a violation. Nothing in the ordinance allowed the police to arrest someone for any more than holding them while they wrote the ticket. As a result, the arrest for a county ordinance that did not authorize arrests was illegal. Since the arrest was illegal, the search of the backpack incident to the arrest was also illegal. Searches incident to a lawful arrest are fine, if limited in scope, but searches incident to an arrest are illegal if the arrest itself was not legal.

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Florida law allows a person to seal or expunge a criminal case under certain, limited circumstances. This is a great option for people who are eligible as a criminal record of any kind can be a serious detriment to future job prospects. For an expunction, a person is eligible if the case the person wants to expunge was either dropped, never filed or resulted in a verdict of not guilty and that person has never been convicted of a crime before and has never had a case sealed or expunged in Florida before. For a sealing, the same rules apply except the person is still eligible to get a criminal case sealed even if he/she pled guilty or no contest as long as the judge withheld adjudication on each count. Also, certain, more serious crimes are not eligible to be sealed. If anyone has a prior criminal case on his/her record and thinks he/she might be eligible to have it sealed or expunged, it is almost always worth looking into as it is generally much better to go into a job search with no criminal record or less of a criminal record. Shorstein, Lasnetski & Gihon will discuss the matter with you and look into your background to see if you are eligible for a sealing or expunction.

While a sealing or expunction in Florida is a great way to eliminate or conceal a prior criminal case from employers running the standard record search, neither process completely eliminates all records from everyone. If the person who had his/her record sealed or expunged gets arrested again, the prosecutor will see the prior case(s), and the judge will know about the prior case for bond and sentencing purposes, if applicable. Also, it is unclear that a sealing or expunction of a criminal case eliminates the state’s ability to get certain records from the prior case, such as DNA.

In a recent murder case near Jacksonville, Florida, a woman was sexually assaulted and murdered by a suspect who fled the scene. The police found an item at the scene with what they suspected was the offender’s DNA. The police ran the DNA found at the crime scene through their system and found a likely match with the defendant. After obtaining other evidence, the defendant was arrested and charged. The criminal defense lawyer filed a motion to suppress the DNA evidence because the police matched the crime scene DNA with the defendant’s DNA that was obtained as a result of a prior case that had been expunged. The criminal defense attorney argued that the state illegally obtained the defendant’s DNA because the prior expunction order required the FDLE to expunge all of its records relating to the case, including the DNA.

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In Florida, any person who sends a written or electronic communication threatening to kill or cause serious bodily harm to another or a family member of that person or threatens some other act of terrorism commits a serious crime in Florida. Under the Florida statutes, that conduct constitutes a second degree felony which is punishable by up to 15 years in prison. Obviously, one would hope that the police are certain the communication is serious before arresting someone for a crime of this nature as people send jokes or ridiculous texts and other communications all of the time. Having a crime like this with such a serious potential penalty creates a lot of room for abuse by law enforcement.  However, if a person is dangerous and sends a serious threat to another, this is the crime to deal with it.

These days, there are many different ways to communicate and many different social media avenues to send information. In a case just south of Jacksonville, Florida, a high school student sent a Snapchat picture to another student which was a picture of a rifle and a message that there will be show and tell the following school day. As expected, the student showed it to others and school officials learned of the communication. Ultimately, the student who sent the picture over Snapchat was arrested for sending a written threat to kill or do bodily injury.

The criminal defense lawyer filed a motion to dismiss the charge. He argued that the defendant was joking and the photo did not specifically threaten the victim in any case. The state responded that the victim did not believe it to be a joke and was worried the defendant would come up to the school with a gun and cause serious harm. The court agreed with the criminal defense attorney and dismissed the case because there was no specific threat to kill or cause harm. The state appealed the dismissal. The appellate court focused on what constitutes a threat under the Florida statute. Should the focus be on whether the person sending the threat was serious or joking, or should the court look at whether the victim reasonably believed the threat was serious? The appellate court determined that the reasonable reaction of the victim should determine whether a crime was committed. In this case, the victim testified that he was scared and believed the threat to be serious. The fact that there was a recent school shooting prior to the threat was also relevant to the victim’s interpretation of the communication. Because the threat was sufficient to cause alarm in a reasonable person, the appellate court reversed the dismissal and allowed the state to proceed with the case.

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