Articles Posted in Criminal Procedure

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In the digital age, when so many people keep cell phones, Ipads, fitness trackers and other electronic devices with them at all times, the courts are grappling with issues of privacy when law enforcement seeks to obtain information about people during their investigations.  We have discussed some of these issues such as whether a police officer can look through a suspect’s phone for incriminating information upon an arrest. The police can normally search a person and check their belongings upon an arrest to make sure there are no weapons, officer safety issues or evidence if there is reason to believe evidence might be present.  A phone or Ipad-like device can contain all sorts of private information and evidence.  However, courts have generally ruled that the police need a search warrant to search a person’s phone even if it is seized pursuant to a lawful arrest.

Another type of data that is stored in electronic devices (or stored with third party entities after being collected by the devices) is location information.  Obviously, a suspect’s location can be critical information if police are investigating an incident like a shooting, robbery or burglary, and they are trying to determine if a suspect was in the area at the time.  The question that arose in this case was whether the police can contact a person’s cell phone provider and request the data they maintain showing customers’ locations.  Or, do the police have to get a search warrant to request that information? Some courts across the country and in Florida have allowed law enforcement to obtain this information without a warrant based on the idea that customers do not have a reasonable expectation of privacy in their location information and/or they do not have standing to object to this information being released by some third party entity.

What makes this data different from information that is kept on one’s phone is that it is automatically generated when a person has a cell phone and it is stored by a third party rather than on one’s phone.  However, the United States Supreme Court recently ruled that the police do have to get a search warrant before requesting this location data from cell phone providers. They found people do have a reasonable expectation of privacy in their location information.

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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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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.

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In Florida, when a defendant pleads guilty or no contest to a criminal charge or is found guilty after a trial, the judge will sentence that defendant.  A sentence can involve jail or prison time or a term of probation, or both.  If a person is sentenced to probation, that means the person will be under the supervision of the court, by way of a probation officer, and will likely have to complete certain requirements as part of that probation.  For instance, the judge may order three years of probation and require the defendant to pay money back to the victim, complete community service hours, take certain classes, complete some type of treatment and/or certain other conditions.  The expectation is that the defendant will complete those requirement before the probation term ends.  If the defendant fails to complete the requirements set forth by the judge or gets arrested for a new crime on probation, the defendant will be subject to a violation of probation charge which could result in more conditions, more probation and/or incarceration.

On the other hand, if the defendant does well on probation and finishes his/her conditions early, the judge might allow the defendant to get off probation early.  It is always a good idea to get off probation early, if possible, for a few reasons.  One, if a person gets arrested for a new charge while on probation, it is worse for that person because it gives the state much more leverage.  The state would have two separate cases against the defendant, one for the new charge and another for the violation of probation.  If the evidence in the new case is not very strong, perhaps not good enough to sustain a new criminal case, the state may still be able to go forward with a violation of probation since the legal standard to violate a person’s probation based on a new charge is much lower than the beyond a reasonable doubt standard for a new criminal case.  Basically, if the judge (not a jury) finds it is more likely than not that the defendant committed a new crime while on probation, the judge can violate the defendant’s probation and put the defendant back in jail.

Two, probation costs money and takes time.  There are supervision fees and reporting requirements even after the defendant has completed the probation requirements as long as he/she is still on probation.  Three, if a person received a withhold of adjudication (which means the defendant was technically not convicted of the crime under Florida law), that privilege is not vested until probation is finished and terminated.  Likewise, if a person is eligible to seal his/her criminal record after a withhold of adjudication, a very helpful mechanism for people who do not want future employers and others to see the criminal record in the future, the defendant is not eligible to have his/her record sealed until probation is completed.

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A Motion to Dismiss a request to a judge to throw out a count or counts against you.  In Florida, there are several different types of motions to dismiss that your criminal defense lawyer can file, including motions based on being pardoned, double jeopardy, and immunity. However, the most common motion to dismiss in criminal law is commonly referred to as a C4 Motion.  A C4 Motion, under Florida Rules of Criminal Procedure 3.190(c)(4), alleges that there are no material disputed facts and the undisputed facts do not establish a prima facie case of guilt against the defendant.


When would a Motion to Dismiss be appropriate in my case?


A C4 Motion to Dismiss is not going to be appropriate in most cases.  Whenever there is any disputed facts in a case, your attorney would not file a motion to dismiss because the prosecutor would file a traverse and the judge would deny the motion without a hearing.  A C4 motion is only appropriate when you and the prosecutor agree on all of the material facts, but you disagree on whether you committed a crime.  For example, if you were charged with child abuse after a video of you spanking your child was discovered and disclosed to the police, the material facts would probably not be in dispute.  The facts that led to the charge are on video for all to see.   However, the prosecutor may allege that you committed child abuse and your criminal defense attorney may file a motion to dismiss alleging, as a matter of law, there was no crime committed.  In other words, your attorney would look at the statute and the prior case law and try to convince the judge that your actions did not rise to the level of child abuse.

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In Florida, the process for a person getting out on bond while a criminal case is pending is usually fairly standard.  If the police officer obtains an arrest warrant to arrest a suspect based on a prior crime, the judge who signs the arrest warrant will normally also place a bond amount on that warrant.  After the arrest, if the defendant can make that bond, then he/she will be released pending the resolution of the case.  When the police arrest someone immediately after an alleged crime was committed without an arrest warrant, that defendant will normally see a judge the next day.  That judge will set a bond for the defendant then at what is called a first appearance hearing.  The defendant can then be released if he/she can make the bond.

The general rule is that anyone who was arrested has a right to a reasonable bond, and if he/she can make that bond, either by paying the full amount or by paying 10% or so to a bonding company, that person can be released from jail.  There is an exception to this general rule that can delay or even prevent a defendant from being released on bond even if he/she can come up with the money to pay the bond.  The state can file what is called a Nebbia motion to prevent a defendant from bonding out.  Essentially, if the state believes, regardless of whether there is any specific evidence to support this belief, that the money to be used to pay the defendant’s bail might come from illegal sources, the state can require the defendant to show that the money comes from a legitimate source.  This does not sound problematic on its face.  Defendants should not be able to use funds from illegal sources as bond money.  The problem is that a defendant is normally entitled to a reasonable bond at his/her first appearance hearing and should be released on that day if he/she can make a reasonable bond.  If the state files the Nebbia motion, many judges will not hold a hearing on that issue at the first appearance court date.  Some judges have never had such a hearing and are not comfortable conducting one when the case may ultimately go to another judge anyway.  Even if a judge is prepared and willing to hold the Nebbia hearing immediately, the defendant may need some time to get evidence and witnesses to court to prove where the bail money is coming from.  Judges do not hold these kinds of hearings every day.  If the hearing needs to be postponed for whatever reason, it could take a couple of weeks before the defendant could have a chance to prove the legitimacy of the bond money and bond out.

The bond system in Florida is already rife with injustice.  Obviously, although it is much worse than most people know, it favors people with money and severely hinders poor people.  All day, every day there are people who plead guilty to a criminal charge without seeing the evidence and without a meaningful consultation with a lawyer because they want to get out of jail quickly and can not afford to make a bond or wait several weeks for the next court date.  The Nebbia inquiry, which the state can request on a mere hunch in all sorts of different cases, adds another questionable procedural hurdle for people to be released who are innocent until proven guilty at that stage of the proceedings.

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When a person enters a guilty or no contest plea or is convicted in a criminal trial, the next step is normally for the judge to sentence the defendant.  A criminal sentence can involve incarceration, probation or both.  If a defendant is placed on probation, he/she is placed on probation for a number of months or years.  During that time, there are usually conditions the defendant must meet.  For instance, the defendant may have to complete community service hours, take certain classes, complete a rehabilitation program and so on.  One condition that is required among all people on probation is that he/she must not commit any new crimes. If a person violates one or more of these conditions, that person will likely be arrested and will face a violation of probation charge.

There are two characteristics of a violation of probation charge in Florida that make it more difficult for defendants than regular criminal charges.  One, the case is decided by the judge rather than a jury.  There is no right to a jury trial for violation of probation charges.  Two, the standard is much lower.  For new criminal cases, the state must prove guilt beyond a reasonable doubt.  There is no way to quantify this standard, but it is supposed to be a pretty high burden, at least in theory.  For violations of probation, the standard is a preponderance of the evidence, which means more likely than not, or greater than 50%.  This is universally considered a low standard.

One intricacy that sometimes comes into play with people on probation is a situation where the probationer gets arrested on a new charge, and for whatever reason, the state does not feel like they can prove the case to a jury beyond a reasonable doubt.  However, they do proceed with a violation of probation case based on that alleged crime since the standard is lower and a judge decides.  This most often happens in domestic battery cases.  The state may have a hard time proving the new domestic battery charge to a jury because the police often do not collect much evidence or do any investigation at the scene upon arrest and alleged victims often change their stories or refuse to cooperate.  However, judges are fully aware of the difficulties in proving domestic battery cases when victims refuse to cooperate, and they know a dropped domestic battery charge does not necessarily mean the suspect is not guilty.  Sometimes it does; sometimes it doesn’t.  The state dropping a case and the defendant being innocent are not necessarily the same thing under the law.

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Most people are aware of the Florida Stand Your Ground law as it received a lot of notoriety during the George Zimmerman case and other cases in Florida since then.  Essentially, the law says that people in Florida are not required to retreat and can use deadly force if he/she reasonably believes it is necessary to prevent the other person from committing an imminent act that is likely to cause death or serious injury to him/herself or another person. It is basically a self defense law that allows a person to use deadly force if the person legitimately thinks the other person is going to do something very bad to him/her.  The law provides some procedural benefits to a defendant who can utilize the Stand Your Ground law.

One question is whether police officers can use the Stand Your Ground law like regular people can.  In a recent murder case near Jacksonville, Florida, a police officer was charged with murder after shooting someone he claimed he thought had a weapon and was pointing it at him.  The police officer was responding to a suspicious person call and saw the suspect walking in a neighborhood with what appeared to be a rifle.  He followed the suspect and ultimately told him to drop the alleged rifle. The suspect did not drop it and pointed it at the police officer, according to the officer.  The police officer then shot him and killed him.

The criminal defense lawyer filed a motion to dismiss the charges based on the Florida Stand Your Ground law.  The criminal defense attorney argued the police officer reasonably believed the suspect had a weapon and was going to fire it at the officer, and he shot the officer in self defense.  The state objected and argued that a police officer does not have the right to assert the Stand Your Ground law because there is a Florida statute that specifically addresses when a police officer may use force when effecting an arrest.  Because there is already a statute on this issuing specifically dealing with police officers are arrests, that law applies rather than the Stand Your Ground law which applies to people generally.

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In Florida, and likely in all of the other states as well, it is illegal for a person to prevent another from reporting a crime or otherwise providing information about criminal activity to the police or in court.  This is part of a more inclusive statute dealing with witness tampering.  The Florida law makes it illegal for a person to use force, intimidation or threats to cause another person to avoid testifying or providing evidence in a case, damage or alter evidence, avoid a subpoena or testify falsely.  It is also illegal to hinder a person from reporting a crime.  This is a felony crime in Florida, and it becomes a more serious felony the more serious the underlying issue is.  For instance, a person can be charged with a life felony of tampering with a witness if the person is obstructing a witness relating to certain serious first degree felony crimes.

This situation can come up in almost any case, but it comes up more frequently in domestic violence cases.  Since the parties know each other in domestic battery cases, the dynamic is one where it is more likely that the suspect will takes steps to try and prevent the victim from calling the police, giving a statement to the state or coming to court to testify.  If force, threats or intimidation are used, this could be a separate crime.

A person can be guilty of tampering with a witness even if the witness or victim has not taken any steps to contact the police or report a crime.  In a recent case near Jacksonville, Florida, the defendant was being abusive to his daughter.  The kid’s mother and sister observed the incident.  After some yelling, the defendant took the cell phones from the older sister and mother and broke one of them.  He kept the other.  He told them they could not call the police on him for his abuse.  No one had attempted to call the police and report the abuse before the defendant took the cell phones.  The defendant was charged with tampering with the two witnesses for preventing them from calling the police.