Criminal Procedure

How Should I Handle Police Questioning When Stopped and Investigated Based on the “Odor of Marijuana”?

Published on: October 20, 2020 | by Lasnetski Gihon Law

The war on drugs has been, and continues to be, one of the most ineffective, expensive and damaging government policies in American history. And as it relates to marijuana, it has not only been a complete waste of money and resources, but it has been an easy, if often illegal, basis for police officers to circumvent 14th Amendment protections against unreasonable searches and seizures allowing police officers to invade privacy and property based on the alleged “odor of marijuana.” So often, police officers claim to smell marijuana, which leads to a prolonged search only to find that there is none. In court, they can simply argue that the defendant must have marijuana prior to the search, and the 14th Amendment protections evaporate. Essentially, the “odor of marijuana” can become a blanket substitute for the 14th Amendment prohibition against unreasonable searches and seizures.

Some progress has been made in this area as states have legalized marijuana recreationally. Minorities are still being arrested for marijuana at much greater rates, so systemic problems remain in force, but legalizing marijuana has provided some protection against these unnecessary and counterproductive arrests and searches.

At the federal level and in states like Florida, cannabis is not fully legal, but hemp is. While the legality of hemp certainly has not received the same kind of praise and publicity that marijuana legalization gets, it has created an interesting dynamic when it comes to police encounters and searches and seizures. Before hemp legalization, police officers would stop a vehicle or approach a person in certain areas, claim to smell marijuana and then assume full legal authorization to search that person’s property. Now, that is not so clear. First, we need to understand what hemp is under the federal and state laws. Hemp is basically the same as the cannabis plant but with less than 0.3% THC content. So, legal hemp looks, smells, feels and tastes just like illegal marijuana. A chemical test to determine the THC content of the substance is required to distinguish legal hemp from illegal marijuana. This is critical because the naked eye, mouth, nose or hand cannot tell the difference between what is legal (hemp) and what is illegal (marijuana). As a result, police officers cannot just search people or vehicles based solely on the “odor of marijuana” because what they have always assumed was marijuana might be hemp, which is now legal. And police cannot search people or property based on the assumption of illegal activity.

Police Illegally Arrest and Search Suspect for Violating County Ordinance in Florida

Published on: June 6, 2020 | by Lasnetski Gihon Law

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.

Expunging a Criminal Record in Florida Does Not Necessarily Eliminate All Records, Such as DNA Records

Published on: May 28, 2020 | by Lasnetski Gihon Law

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. Lasnetski Gihon Law 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.

When Can the Court Order Restitution in Florida Criminal Cases?

Published on: March 25, 2020 | by Lasnetski Gihon Law

In Florida criminal cases, if and when a defendant either pleads guilty or no contest or is convicted at a trial, the court will normally order restitution as part of the defendant’s sentence if there is a victim who lost money or property as a result of the crime. This is most common in fraud and theft cases where the defendant stole money or something else of value from the victim. It is also common in cases where the victim’s property was damaged or the victim was injured as a result of the crime and had to pay for medical bills or to fix or replace property.

Normally, the prosecutor will get with the victim and find out the amount of restitution. The prosecutor and criminal defense attorney will go over the amount and the proof of loss and come to an agreement as to the amount of restitution. If they cannot agree, the court will hold a hearing to determine the amount of restitution that is owed. Then, the defendant can either pay it prior to or at the time of the resolution of the case or the judge will sentence the defendant to a period of probation, either instead of jail or prison or after jail or prison, and the defendant will pay the restitution as a condition of probation.

However, there are times when the state does not know the amount of the restitution when the defendant pleads guilty or no contest. This happens because the prosecutor has not been able to get in touch with the victim or the amount has otherwise not been determined yet for some reason. In this case, the state will normally ask the judge to reserve a period of time to determine the restitution amount. When a defendant pleads guilty or no contest and gets sentenced, the sentence will not change, for better or worse, absent other circumstances in the future. However, if the judge reserves right to determine restitution at a later date, the judge can add a restitution amount at that later time. Florida law indicates that the judge has 60 days for which restitution can be reserved. Some criminal defense lawyers interpret this to mean that if the state does not figure out the restitution amount and the judge does not order that restitution amount within 60 days from the conviction, the state can no longer seek restitution. However, the case law rejects that argument. As long as the judge reserves the issue of restitution within 60 days of the sentence, the state can come back and ask the judge to order the restitution amount after that 60 days has elapsed. Normally, if the state does not have the amount at the sentencing hearing or immediately thereafter, they are never getting it. But, sometimes, the prosecutor is diligent and comes up with a figure later. As long as restitution was reserved within 60 days of the plea and sentence, the state can ask the judge to order restitution beyond that 60 day period.

Can the Police in Florida Get Blood to Test for Alcohol in a DUI Case Where the Driver is Unconscious?

Published on: February 7, 2020 | by Lasnetski Gihon Law

In Florida, most DUI cases involve some alleged traffic violation followed by a DUI investigation and an arrest. If the police officer thinks the driver is impaired from drugs or alcohol, and usually the officer makes that decision early and quickly, that officer is going to make the arrest. Everything else he does is designed to gather evidence to support the decision he has already made. Some people think the police officer will offer a breathalyzer test before an arrest to determine if an arrest for DUI is, in fact, appropriate. But that is not how it works. Essentially, there is a traffic stop, the police officer decides the driver is DUI, collects evidence such as field sobriety test results, makes the arrest, takes the driver to jail, books the driver into the jail and only then requests the breathalyzer test. So, the breathalyzer test is not something a driver can do to avoid an arrest. The arrest is a done deal at that point. It is just another tool the police use to try to bolster their DUI case.

Most DUI cases involve a request for a breathalyzer test at the jail. However, there are situations where a breathalyzer test is not feasible, for instance, if the defendant was injured in an accident and had to be taken to the hospital or is otherwise unable to provide a breath sample. In that situation, the police might have the option of getting the driver’s blood to test for alcohol content. However, there are legal limitations to getting blood in DUI cases, and the police cannot always do it just because a breath test would be inconvenient.

In a case south of Jacksonville, Florida, a driver was injured in a single vehicle accident. A police officer responded and smelled alcohol coming from the vehicle. The driver was unconscious and taken to the hospital. The driver was not able to provide a blood sample so the police officer asked medical personnel to obtain a blood sample to be tested for alcohol content. The police officer did not seek a search warrant before getting the blood sample. After the blood tested well over the legal limit in Florida, the driver was arrested for DUI with injury.

Florida Defendant Argues For Stand Your Ground Protection After Shootout With Police Officers

Published on: November 27, 2019 | by Lasnetski Gihon Law

In Florida, the Stand Your Ground law received a lot of attention over the years, particularly in relation to the Trayvon Martin case. The Florida Stand Your Ground law is not a particularly radical law. It is essentially a self defense law that allows a person to use reasonable force, including deadly force, in response to an imminent threat of similar harm. In other words, if a person reasonably believes someone is about to injure or kill him/her, or another person, that person can use a similar level of force to prevent that from happening. There may be issues regarding whether the other person’s threat was truly imminent and whether the suspect used a commensurate level of force, but it is generally a self defense law. What makes the Florida Stand Your Ground law somewhat exceptional is the procedural aspect of it. Rather than having to assert the Stand Your Ground defense at a trial and hope the jury sides with the defendant, which is always questionable, a defendant can file a motion with the judge that requires a hearing prior to the trial. Once the defendant makes an initial case of self defense, state has the burden of proving the defendant did not have a valid basis to use force or that the Stand Your Ground law does not apply for legal reasons, and if the state fails to do so, the judge should rule in the defendant’s favor and the case is over. A jury would never hear the case. This is an immunity rather than a defense in that if the defendant’s motion is successful, the defendant is immune from further prosecution for the offense.

In a recent case near Jacksonville, Florida, an older defendant lived at home with his adult niece. He was a security guard with no prior criminal record. He had a concealed carry permit and firearms training. One evening, someone knocked on his door, his niece answered, and some guy pulled her out of the house. The niece resisted and called for the defendant to help her. Two other men were there and helped the first man pull the niece away. The defendant grabbed his guy and ran outside. He fired a warning shot into the air. The three men shot back, and a gunfight ensued. The defendant and his niece were hit along with one of the other men.

It turns out, these three men were police officers, although they apparently never announced that fact to the niece or defendant. They went to the house in an undercover capacity to investigate the niece’s alleged prostitution offenses. They arrived in plain clothes and an unmarked vehicle and posed as customers seeking a prostitute. After the incident, the defendant was arrested and charged with three counts of attempted murder of a law enforcement officer.

Florida Police Were Permitted to Detain Suspect for Wearing a Bulletproof Vest at Church

Published on: August 2, 2019 | by Lasnetski Gihon Law

In Florida, the Constitution protects people from unreasonable searches and seizures from law enforcement. This means the police cannot just stop, detain or search a person based on speculative reasons or for no reason at all. Depending on the circumstances and the nature of the intrusion into a person’s privacy, the police must have some level of specific proof that a person is, or may become, involved in criminal activity. For an initial detention where the police stop a person to briefly investigate possible criminal activity, the police must have reasonable suspicion of a danger or criminal activity. This suspicion must be based on specific facts, not a hunch.

In a recent case just south of Jacksonville, Florida, the defendant was at a private church function uninvited and wearing a bulletproof vest. The police were called, and when they arrived, the defendant walked away. The police officers asked the defendant some questions and then detained him to investigate further. As the police were detaining and questioning the defendant, they noticed a bulge in his pocket. They patted the defendant down and found a gun. The defendant was arrested.

The criminal defense lawyer argued that the police unlawfully detained the defendant because there was no reasonable basis to believe that he had committed, or was about to commit, a crime. It is not illegal to wear a bulletproof vest in public, and the defendant did not give any indication that he was involved in criminal activity.

Florida Courts Can Prohibit a Defendant From Accessing the Internet While on Probation

Published on: July 26, 2019 | by Lasnetski Gihon Law

When a defendant in Florida pleads guilty or no contest to a crime, or goes to trial and is convicted by a jury, the next step is for the judge to sentence that defendant. Most sentences for crimes other than minor misdemeanors involve incarceration, probation or both. When a defendant is placed on probation, the judge will normally require the defendant to complete certain conditions while on probation, such as community service, paying restitution, some type of treatment, etc. The judge also has the authority to require more unorthodox conditions when the facts of the case make such requirements appropriate.

For instance, in a recent sexual battery case near Jacksonville, Florida, the defendant was placed on probation for 10 years, and one of the conditions prohibited the defendant from accessing the internet except for work and shopping, but no access to social media sites in any case. The criminal defense lawyer objected to that condition and ultimately appealed the sentence to the appellate court. The criminal defense attorney argued that the condition forbidding internet use violated the defendant’s First Amendment rights. The legal analysis for such a First Amendment issue looks at whether the judge’s condition is narrowly tailored to protect a compelling government interest. In other words, the state or the judge can infringe upon a person’s First Amendment rights, but the particular condition that does so must be designed to protect a significant interest and it must not be overbroad in doing so. The criminal defense lawyer conceded that protecting children from a convicted sex offender was certainly a compelling interest. However, the criminal defense attorney argued that such a broad internet restriction was not narrowly tailored to protect that interest.

The criminal defense lawyer cited a United States Supreme Court case which held that a North Carolina statute was unconstitutional as it created a felony crime for any sex offender to access certain websites, including general social media websites like Facebook and Twitter. The Florida appellate court distinguished that case because the North Carolina case involved a statute that limited sex offenders from accessing the internet even after their sentences were completed. So, even after they had successfully completed probation, those sex offenders were still restricted from accessing the internet and risked committing a new felony crime for a violation. That statute did violate the First Amendment as it was prospective and indefinite.

Can the State Force a Defendant to Provide the Passcode to a Cell Phone in a Florida Criminal Case?

Published on: June 28, 2019 | by Lasnetski Gihon Law

Over the last several years, there has been a lot of litigation over whether, how and to what extend the police and prosecutors can access a person’s cell phone data. As everyone is aware, cell phones can contain a wealth of information about a person, his/her activities and the people with whom he/she associates. This can provide the state with a lot of incriminating information that can be used to successfully prosecute defendant in a wide variety of cases. But because cell phones contain so much private information, courts in Florida have recognized a right of privacy with cell phone information such that the police cannot normally just take a person’s cell phone and search it for whatever they want.

Let’s say the state did obtain a defendant’s cell phone or similar electronic device. Can the state force the defendant to provide the passcode to the state so they can access and search it?

In a recent robbery case near Jacksonville, Florida, the police seized a passcode protected Iphone from the defendant when he was arrested. The state later filed a motion to compel the passcode from the defendant. In the motion, the state said it was looking for all communication information and photographs for a seven day period prior to the arrest. The motion did not reference any specific information the state believed was on the phone that was relevant to the case. The state just believed the defendant communicated with his co-defendant prior to the robbery and was looking for evidence of that. The criminal defense attorney objected based on the Fifth Amendment right against self-incrimination. The Fifth Amendment forbids the government from compelling testimonial communications or acts that might incriminate a suspect or defendant. Whether something is testimonial depends on whether the request requires the person to use the contents of his own mind to communicate some statement of fact. This court determine that disclosing a passcode known in the defendant’s mind would be a testimonial act.

Probationer in Florida Has Severely Compromised Right to Privacy

Published on: April 18, 2019 | by Lasnetski Gihon Law

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.