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adobe-spark-postThe Florida Time Union released a story with some eye-popping statistics relating to the use of pedestrian citations in the city’s most crime ridden areas of Jacksonville.  Jacksonville criminal defense attorneys often challenge these pretextual stops, but the case law continues to generally support the use of profiling, as long as there is a lawful basis for the stop.  With so many pedestrian safety statutes on the books, it’s easy for a law enforcement officer to pick and choose who the officer wants to stop and question, under the guise of pedestrian safety.

Jacksonville Sheriff’s Officers will often conduct a stop and talk or a stop and frisk search on individuals they believe are suspicious and if they uncover something illegal, they will make an arrest.  But what effect does their detention have on a citizen who has done nothing wrong?  Won’t that person feel profiled?  Unjustly singled out?  How big of a group is this?  How many citations do the Jacksonville Sheriff’s Office issue where the person was engaged in otherwise lawful conduct and possessed nothing illegal on their person?  How many African American citizens have been stopped for violation of a pedestrian safety statute and not issued a citation simply so the Jacksonville Sheriff’s Officer could investigate them further?  An African American law abiding citizen living in a high crime area is sure to carry resentment if he or she feels continually harassed or is cited for violations of pedestrian safety statutes that are not enforced in the low crime, white areas of Jacksonville.

Also disturbing, is the report that the Jacksonville Sheriff’s Office has been issuing hundreds of citations despite the person not actually violating the statute.  Whether this true or not, it seems like the end desire of law enforcement (to drive out crime in crime ridden areas of Jacksonville) is laudable, but some of the methods (pretextual stops and searches) may do more damage than good.  So many crimes in predominantly African American, low income neighborhoods require the cooperation of citizens who live in that community.   When those people don’t trust law enforcement because of what they consider constant, unjustified harassment, they are less likely to cooperate in a criminal investigation.  Murders, rapes, robberies, burglaries can all go unsolved or unprosecuted because the State lacks the witnesses and evidence to proceed.  It would seem that if the Jacksonville Sheriff’s Office spent more resources providing more law enforcement officers for those particular areas that need them the most and if those law enforcement officers developed, groomed, and maintained positive relationships with the citizens of those communities, more crimes would get solved and successfully prosecuted.

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In Florida, most DUI cases result from a police officer claiming to observe a person violate a traffic law.  The police officer conducts a traffic stop, claims to observe signs of impairment from alcohol or drugs and then initiates a DUI investigation.  DUI investigations normally involve various questions about where the driver has been, what the driver has been doing and how much the driver has had to drink.  The driver, of course, is free to refuse to answer any of these questions.  They are designed to discover evidence that can be used against the driver in a DUI case.  The police officer will also ask the driver to perform field sobriety tests.  These are completely subjective coordination tests that can be difficult and should be refused if the police officer does not have a video camera to record this critical encounter.  Finally, the police officer will normally ask the driver to submit to a breathalyzer test to measure the driver’s blood alcohol level.  Unfortunately, these tests are only given after the DUI arrest.  Therefore, a good number on the breath test will not change the fact of the DUI arrest.  The police officer has a right to request a breath test if there is probable cause to believe the driver is impaired.  While the driver can refuse the breathalyzer test, a refusal will likely result in a longer driver’s license suspension because of the Florida implied consent laws.

The police officer cannot ask for a blood test in normal DUI cases.  There are certain rules that dictate when a police officer can seek a blood draw alcohol test in a DUI case.  Failure to follow these rules will result in any blood alcohol test being thrown out of court.

A driver in a case just south of Jacksonville, Florida had wrecked his motorcycle, and the police officer arrived after the fact.  The police officer claimed to observe the standard factors such as odor of alcohol and slurred speech.  The police officer arrested the suspect for DUI and took him to the hospital due to a potential ankle injury.  At the hospital, the police officer requested a blood sample to test for alcohol content.  The police officer did not mention the possibility of a breathalyzer alternative.  The suspect agreed to the blood draw.  He was treated for an ankle sprain and released.  He was then taken to the jail.

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With some exceptions, police officers generally work for a county or city department.  In Florida, we do have the Florida Highway Patrol and officers who work for multiple agencies and federal law enforcement officers, but most cases of common crime, like DUI cases, will involve a county or city police officer.  Those police officers are generally only allowed to investigate crimes and make arrests for crimes that occur within their jurisdiction.  There are a couple of exceptions. One is when the police officer is pursuing a suspect.  For instance, if a police officer observes a crime occur in his/her county and the suspect runs or drives into the next county, that police officer can chase the suspect into the next county. The police officer cannot chase the suspect forever and should contact a police officer in the next county to take over, but the officer does not have to stop at the county line.  Another exception is when exigent circumstances exist.  These situations are rare and would almost never occur in a standard DUI case.  The third exception is when two police departments have a predetermined agreement in place to assist each other.  These agreements do take place in Florida, but they have to be set out in writing and the particular investigation and arrest have to comply with the terms of the agreement. Two law enforcement agencies cannot just agree to help each other allowing the respective police officers to go into the other counties and make arrests.

In a recent DUI case near Jacksonville, Florida, a police officer observed a suspect he thought was driving under the influence of alcohol (DUI).  However, that police officer was occupied with another matter.  He called a police officer from the neighboring county to investigate.  The second officer came over, found the DUI suspect and ultimately arrested him for DUI.

The criminal defense lawyer filed a motion to dismiss the DUI case because the arresting officer did not have a legal basis to investigate the DUI case and make the arrest out of his jurisdiction.  The state countered by showing the court that there was a mutual aid agreement between the two counties.  However, that is not enough.  There must be a specific agreement between the counties and the particular case must be one that is contemplated by the agreement.  In this DUI case, the agreement discussed cases of emergencies, special events or other situations where the two police departments would assist each other.  It did not cover a DUI case like the one at issue here.  Therefore, the arrest of the defendant out of jurisdiction was illegal, and the DUI case was thrown out.

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In Florida and other states, DNA can be a useful tool for the police and the prosecutors to use to determine who committed a crime.  It is not used nearly as often as one might expect from watching TV shows, but it certainly does come in to play in some cases.  The police might respond to the scene of a crime and collect samples of tissue in the hopes that they can compare the DNA of that tissue to a suspect, find a match and prove that the suspect either committed the crime or at least was present at the scene of the crime.

However, in order to make this comparison, the crime scene officers need to find usable tissue at the scene.  Secondly, the state needs to be able to collect DNA from a suspect to make the comparison with the evidence.  In the past, collecting DNA was more intrusive upon defendants and suspects.  More recently, a quick, simple and painless cotton swab of the inside of a person’s mouth can secure the DNA necessary for a comparison.  Because collecting DNA from a person is much less involved and intrusive than it used to be, courts are more likely to allow it since it is such a minor and unobtrusive procedure.

However, that does not mean the police or the state can just obtain a person’s DNA whenever they want or for whatever reason they want.  In a recent armed robbery case south of Jacksonville, Florida, the police collected a gun and a backpack that was apparently possessed by the armed robber.  They found a suspect and arrested him.  During the case, the state sought to obtain the defendant’s DNA by doing a cheek swab so his DNA could be compared to any DNA found on the gun or backpack.  However, due to the Florida crime lab procedures, probably based on budgetary concerns, the state could not say whether they had any DNA from the evidence to compare to the defendant’s DNA.  Apparently, the policy is to only determine if there is evidentiary DNA once they have DNA from a suspect.

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As many people know, the federal government classifies certain drugs according to a schedule.  In fact, the Drug Enforcement Agency is permitted by statute to make the rules which determine in which class a particular drug belongs.  Criminal statutes and penalties are enacted based on those classifications.   Schedule I drugs are considered the most dangerous and the most addictive.  Examples of Schedule I drugs are heroin and LSD.  Schedule V drugs are the least dangerous.  An example of a Schedule V drug is the cough medicine Robitussin.

Despite Schedule I including the most dangerous and addictive drugs and substances that have no accepted medical value, cannabis, or marijuana, is still considered a Schedule I drug.  Basically, the federal government is saying  marijuana is just as bad as heroin and bath salts.  Also, despite the fact that doctors all over the country, and all over Florida, are prescribing marijuana to patients to treat a variety of medical conditions, the federal government is saying that marijuana has no accepted medical use. By definition, in order to be a Schedule I drug, a substance must have no accepted medical value.

This kind of government ignorance and corruption would be silly if it wasn’t resulting in people going to prison for having marijuana.  In some marijuana cases, criminal defense lawyers are making the legal argument that it is not constitutional to punish a person for having a Schedule I drug that has no medical use when we are dealing with a substance that medical doctors all over Florida and the country (and all over the world) are prescribing to patients for medicinal purposes.  That seems like an obvious and logical argument that cannot lose in any tribunal where logic and reason are considered useful tools for decision making.  However, anyone who believes logic should win the day underestimates just how backwards our government is, and just how addicted government officials are on campaign donations from billion dollar pharmaceutical companies.  Financial influence is a formidable opponent of reason and justice.

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Florida Gator head football coach recently told the media that he has received death threats following a few losses on the field.  Coach Mac shrugged those threats off as part of the job, but he is probably quite concerned for the safety of his family.  So what protection does Coach Mac have if law enforcement were able to track down the people responsible?  Well, there is a huge distinction in Florida law between written threats and verbal threats.  Written threats are treated much more harshly than verbal threats in the State of Florida.  Once they are made (and often they are made in a spur of the moment fit of anger or frustration with no intent to carry through with the threat), they often leave a trail of evidence that leads back to the author.  So what are written threats under Florida law?

WRITTEN THREATS

Written threats are covered by Florida Statute Section 836.10, which makes it a second degree felony to send a written threat.  A second degree felony is punishable by up to 15 years in prison.  So what does the State have to prove in order to convict someone of “written threats?”  Lets break it down:

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In Florida, the police can stop a driver if that officer observes the driver commit a traffic violation.  This is a detention under search and seizure law, but it is justified based on the fact that the driver apparently committed a traffic violation.  Many DUI cases start this way in Florida.  However, if the violation is merely a traffic violation, the police officer can generally only keep the driver for the purpose and only as long as it takes to write a traffic ticket.  If the police officer keeps the driver for an extended period of time without specific evidence of criminal activity, it is likely a violation of search and seizure law.

Another detention occurs when the police officer asks a driver or other occupant of the vehicle to exit the vehicle.  A criminal defense lawyer would argue that pulling a person out of a vehicle during a routine stop is an illegal detention.  If so, that criminal defense attorney could have any evidence seized thereafter suppressed due to the illegal seizure.

In a recent gun case just south of Jacksonville, Florida, the defendant was stopped for having an illegally tinted window.  The police officer ordered the defendant out of the vehicle while they had a drug dog sniff the vehicle.  When he opened the door to exit the vehicle, the police saw that he had a handgun under his seat.  Since the defendant was a convicted felon, he was arrested for possession of a firearm by a convicted felon.

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In Florida, the definition of battery is very broad.  Of course, if you hit a person or strike them in a violent way, that would qualify as a battery without a reasonable defense, like a valid self defense claim.  But the Florida definition of battery also includes an unauthorized touching.  People touch other people in all sorts of ways.  According to the Florida battery statute, that contact can be considered a criminal battery if the touching was unauthorized.  With a statute worded so broadly, we rely on the police and the prosecutor to only make arrests and file charges when the conduct is intentionally malicious and properly serious.  Of course, giving the government broad powers and relying on them to use their powers with deliberation and reservation is a scary thought.

In any case, it is rare to see the state charge a person with battery when the contact is minimal.  It does happen, but fortunately it is not common. In a recent case near Jacksonville, Florida, a kindergarten teacher was convicted of battery after an altercation with a child at school.  The kid was behaving poorly by yelling, throwing things and spitting.  The teacher smacked the child but said she did it to try to block his spitting and throwing things at her.  The child was not injured.  Another teacher saw the incident, the police were called and the teacher was arrested for battery for intentionally touching the child against his will.

This case was different than a normal battery case because the defendant was a teacher.  Teachers are presumed to be similar to parents under Florida law when the child is in the custody of the teacher.  Teachers, like parents with their kids, have the obligation to supervise and control their students, and along with that, they have the right to discipline the children who misbehave.  This includes the right to reasonable physical punishment.  The criminal defense lawyer appealed the teacher’s conviction for battery.  The appellate court agreed that the teacher had the right to reasonable discipline of the child who was behaving as this one was.

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In Florida, the police are generally not allowed to enter a person’s home to search or investigate a crime without permission from the homeowner or a valid search warrant.  In some cases, the police cannot even go onto your property to search or investigate if the property is properly fenced and it is clear people are not welcome on the property.  The right to privacy in one’s home is one of the strongest constitutional protections.

However, for homes that are not adequately fenced in, the police are normally allowed to go up to anyone’s door, knock and ask questions.  As long as it appears that the general public would be allowed to go up to a door and knock, the police can too.  The residents can refuse to answer the door or they can refuse to answer any questions if they do open the door, but the police are welcome to try and knock and see if they can get someone to talk or even let them in.  If the residents do not cooperate, the police are not allowed to take the encounter any further, at least according to the law.  In practice, the police do not like to take no for an answer and may act accordingly.

In any case, if homeowners or other residents do not want the public or the police to be able to just walk up to their doors, knock and try to get information, they need to make it clear that their property is not open to the general public.  Fences and gates work well to do this.  Signs can as well, but the sign needs to be clear.  There was a case in Jacksonville, Florida where a person growing marijuana in his house had a “No Solicitors” sign on his door.  He had no gate or fence and no other signs.  The police walked up to his front door, knocked, smelled marijuana when the door was opened and subsequently obtained a search warrant.  The homeowner was arrested for growing marijuana.

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A recent DUI case near Jacksonville, Florida had a couple of interesting issues.  Essentially, a police officer was in his patrol car but out of his jurisdiction.  He came across a person riding his motorcycle who had just crashed.  She went over to assist and ultimately determined that he had been driving while under the influence of alcohol (DUI).  The police officer kept the suspect at the scene until proper backup from the that jurisdiction could arrive.  Once a police officer in that jurisdiction arrived, he took over the DUI investigation and arrested the defendant for DUI.  By the time the second police officer arrived, the defendant was no longer driving or on his motorcycle.

The first issue is that a police officer cannot generally make arrests outside of his jurisdiction.  This first officer was in a different county.  It was nice that he went over to try and assist the defendant, but he was not legally authorized to make an arrest of the defendant for DUI. There are exceptions to this rule, for instance, where a police officer is chasing a suspect who goes into another county, or police officers have agreements in place with agencies in other counties or emergency situations where felonies occurred.  However, none of those applied here.

There is something in Florida law called a citizen’s arrest.  Citizens can arrest other people for felonies and breach of peace.  A police officer outside of his jurisdiction has the same right to effect a citizen’s arrest as a normal citizen does.  A DUI that does not involve a serious injury or death is not a felony, so if this was to be a valid citizen’s arrest, it would have to be considered a breach of peace.  A breach of peace is a generic legal term.  It is like obscenity- you know it when you see it, but it generally is going to require an element of disturbing the peace.  The court determined this was not a breach of peace situation as the defendant was not causing any disturbance to others when the police officer found him.  Certainly, erratic driving that endangers others could be a breach of peace, but this officer did not observe that.  Because there was no right to make a citizen’s arrest and this officer was not in his jurisdiction, the officer had no right to try and keep the defendant at the scene to wait for the second officer.