Gun Crimes

Florida Man Arrested for Firearm and Marijuana Charges After Firefighter Spots Illegal Items in his Garage

Published on: October 21, 2016 | by Lasnetski Gihon Law

In Florida, a person enjoys special protection from illegal searches and seizures in his/her home or other residence. At a minimum, this means that police officers and other agents of the state cannot just come into a person’s residence looking for evidence of criminal activity without a search warrant or valid consent from someone who is authorized to provide consent. However, there are exceptions to this rule that would allow a police officer or other state agent to come into a person’s home. If they find illegal items such as guns or drugs once they are legally inside the residence, a criminal investigation can initiate.

In a recent case south of Jacksonville, Florida, firefighters and police officers responded to a fire in the suspect’s residence. Police and firefighters are permitted to enter someone’s home without consent or a search warrant to deal with an emergency health or hazard issue like a fire. Of course, they must do so only for the purpose of assisting with the emergency and not for the purpose of looking for evidence of a crime. However, if they see evidence of a crime while in one’s home for other purposes, they are not required to ignore it. In this case, the firefighters entered and exited the house through the garage. While doing so, they saw drug paraphernalia on a table in plain view in the garage. After seeing the drug paraphernalia, the firefighters went back inside to make sure there was no additional fire threat and saw marijuana in a closet. They informed the police who detained the defendant. The police officers requested consent to search the house from the defendant. When the police searched the house, they found more marijuana, guns and drug paraphernalia. The defendant was arrested for possession of a firearm by a convicted felon and possession of marijuana with the intent to distribute.

The criminal defense lawyer filed a motion to suppress the evidence of the marijuana, guns and drug paraphernalia arguing that the police did not have a legal basis (a search warrant or valid consent before the defendant was detained) to search the house. The court found that the search and seizure related to the marijuana and drug paraphernalia were legitimate. The firefighters had a legal basis to be inside the house putting out the fire, and they saw the marijuana and drug paraphernalia in plain view while legally in the house. They had a right to inform the police about those items. On the other hand, the guns and items found after the defendant was detained and the police searched the house were suppressed. At that point, the police were obligated to get a search warrant to search the house for additional evidence. They never attempted to do so. As a result, the defendant could be charged with possession of marijuana with intent to distribute and possession of drug paraphernalia, but the state could not go forward with any charges related to the guns due to the illegal search.

For People in Florida Who Want to Own a Firearm, the Prior Felony Disposition is Critical

Published on: February 12, 2016 | by Lasnetski Gihon Law

In Florida, it is illegal for someone who has been convicted of a felony crime to own or possess a firearm. This applies to any felony conviction, so if a person who lives in Florida has a prior felony conviction from any other state, that will still prevent the person from legally having a firearm in Florida. In other words, the prior felony conviction does not have to be a Florida felony conviction.

A possession of a firearm by a convicted felon charge is a serious crime in Florida. It is a second degree felony in Florida, which is punishable by up to 15 years in prison. Prosecutors often seek prison time for a first conviction for this crime.

There can be many defenses to a possession of a firearm by a convicted felon charge. First, depending on where the gun was found in relation to the defendant, a defendant can argue that he/she was not actually in possession of the firearm. Or, a defendant can argue that he/she is not a convicted felon. Whether a person is a convicted felon seems fairly straightforward. However, in Florida, it may not be. When a person gets charged with a felony crime in Florida, he/she can either have a trial or enter a plea of guilty or no contest to the charge. If the person does enter a guilty or no contest plea, or loses at trial, the judge can do one of two things. The judge can adjudicate the defendant guilty. This means the judge is finding the defendant guilty which is a conviction under Florida law. Or, the judge can withhold adjudication of guilt. This means that the judge is not technically finding the defendant guilty (although he/she may have admitted guilt or been found guilty). As a result the defendant is not a convicted felon. Therefore, he/she is permitted under Florida law to own and possess firearms without concern for this criminal statute.

DNA on Gun Was Not Sufficient for Possession of a Firearm By a Convicted Felon Conviction in Florida

Published on: June 2, 2014 | by Lasnetski Gihon Law

In criminal cases, DNA evidence is often seen as a strong indicator of the defendant’s guilt. Not many cases have DNA evidence presented by the state, but when the state does present DNA evidence, juries usually take note. DNA evidence is certainly well established evidence at this point that can be difficult for a criminal defense lawyer to refute. However, DNA evidence does not necessarily mean what the state wants it to mean or what the state argues it means to the jury.

In a recent case south of Jacksonville, Florida, the police responded to a burglary call. When they arrived, they arrested the suspected burglar and then checked the apartment for evidence. Inside the apartment, the police found a gun in the bedroom. Because the occupant of the apartment was a convicted felon, the police arrested him for possession of a firearm by a convicted felon.

Although it is rare, the police tested the gun for fingerprints and DNA and found viable DNA on the gun. The DNA matched the defendant who lived in the apartment. The police also found the presence of other DNA on the gun but did not test any of the DNA to see if it matched with the burglar. The state argued that since the gun was found in the defendant’s apartment and had his DNA on it, the defendant was guilty of possession of a firearm by a convicted felon.

Carrying a Concealed Firearm in Florida Means Hidden From Plain Sight

Published on: May 11, 2014 | by Lasnetski Gihon Law

While the Second Amendment clearly gives people the right to own and carry a firearm, there are restrictions of that right. In Florida, those restrictions can come with severe penalties if a person is in violation of the law. For instance, if a person has been convicted of a felony in the past, whether in Florida, in another state or in the federal system, that person may not carry or possess a firearm, If he/she is caught in possession of a firearm, he/she will likely face a felony charge that often results in prison time.

Another restriction for people who have no felony criminal record is that they may not carry a firearm that is concealed without a license. “Concealed” is defined as being hidden from the ordinary sight of another person. Normally, whether a firearm is concealed depends on the circumstances of the case and may ultimately be decided by a jury. The jury would obviously look at where the gun was found and how visible it was, but any evidence indicating that the defendant was acting suspiciously and trying to hide the gun would be considered as well. A defendant is more likely to be exonerated when the gun was fairly visible and not covered by anything and the defendant was not acting strange versus a situation where the gun was harder to see and it appeared the defendant was taking steps to try to hide it from the police officer.

Ultimately, these cases are often based on the testimony of the police officer and the defendant and whichever a jury believes. A carrying a concealed firearm charge is a third degree felony in Florida.

Gun Possession Charge Thrown Out in Florida After Illegal Detention

Published on: February 26, 2014 | by Lasnetski Gihon Law

In Florida, if police obtain evidence of a crime after an illegal detention, the criminal defense lawyer can get that evidence thrown out. In a recent case near Jacksonville, Florida, the police saw some people smoking cigarettes in a public park. Smoking was prohibited in the park so the police officers approached the group. The police learned the group came to the park in a vehicle, but none of them had licenses to drive. The police officers told them not to drive the car. The defendant went to the car to retrieve some property. The police officer then approached the defendant and asked him if he could pat him down, but the defendant refused. The police officer then detained the defendant who later admitted he had a gun in his pocket. The defendant was arrested for possession of a firearm by a convicted felon.

The criminal defense lawyer filed a motion to suppress the evidence of the gun arguing that the police had no legal basis to stop and detain the defendant. The police officer cannot stop and detain someone based on suspicion that the person is involved in criminal activity. The fact that the defendant went to the car to retrieve something is not specific evidence of criminal activity. The police officer may have assumed the defendant got something illegal out of the car, but a bare assumption is no basis to detain someone. While the defendant did ultimately admit that he had a gun, which was illegal since he was a convicted felon, that admission only came during an illegal detention. Since the illegal detention preceded the admission and prompted the admission, the admission does not rectify the illegal detention.

Of course, a police officer is always allowed to approach a person in a public place and ask questions and even ask to search that person. Likewise, that person is free to refuse. In this case, the difference was that the defendant initially refused the officer’s request to pat him down. The officer learned of the gun only after a detention that was not based on any evidence. Had the defendant initially agreed to a patdown and had officer found the gun initially, the possession of a firearm by a convicted felon charge probably would be been allowed to proceed. But since the defendant was smart enough to refuse the patdown, the police did not legally obtain the evidence of the handgun and the charge was ultimately thrown out.

Florida Students in School Have Less Protection Under Search and Seizure Provisions

Published on: December 30, 2013 | by Lasnetski Gihon Law

In Florida, people have a strong constitutional protection to be free from unreasonable searches and seizures from the police. This protection is stronger or weaker depending on what is being searched. For instance, it is the strongest when it comes to one’s residence and somewhat weaker when it involves a person’s vehicle. In any case, the police cannot just search a person or his/her belongings without a search warrant, consent to search or one of the limited exceptions to those two circumstances.

However, in Florida, a student in school has a more limited protection against searches and seizures of his/her property. In a recent gun case near Jacksonville, Florida, the principal received an anonymous tip that a student had a gun at his public school. Based on this anonymous tip, the principal removed the student from class, took his book bag and searched it. The principal found a gun in the book bag, and the student was arrested for carrying a concealed weapon and possession of a firearm on school grounds.

The criminal defense lawyer filed a motion to suppress the evidence of the gun claiming the principal did not have probable cause to search the defendant’s book bag. The motion was denied. Under normal circumstances, an anonymous tip, without more evidence, would practically never be a legitimate reason to search someone or his/her property. If this was at the student’s home, a traffic stop, an encounter on the street or any number of other situations, this search would have been illegal. However, things are different in public school. With a Fourth Amendment issue and the search and seizure laws, the primary issue is whether the search was reasonable under the circumstances. There are several factors that determine what is reasonable. Some of those factors include: the suspect’s expectation of privacy in the property searched, the reliability of the information about the alleged criminal activity and the state’s interest in protecting the public.

Florida Possession of a Firearm by a Convicted Felon Statute May Be Unconstitutional as Applied to Antique Firearms

Published on: December 27, 2013 | by Lasnetski Gihon Law

In Florida, it is a felony crime for a person to have a firearm after he/she has been convicted of a felony crime. This is true even if the felony conviction occurred in another state. The term “possession” in the possession of a firearm by a convicted felon statute does not just mean a firearm a person is actually carrying; it can also apply to a firearm that is in one’s home, vehicle, office or other place where the state can prove the person knew it was there and had the ability to exercise some sort of control over it.

There is an exception to the Florida possession of a firearm by a convicted felon law that comes up every now and then. The criminal statute does not apply to antique firearms. In other words, if a firearm qualifies as an antique under the Florida statute, a convicted felon can possess it. An antique firearm is defined as a firearm manufactured in 1918 or earlier, or a replica thereof whenever manufactured, and any firearm using fixed ammunition made in 1918 or earlier, for which no ammunition is now made in the United States or readily commercially available. The exception here is fairly narrow, but there are collectors and other people who may have such old firearms. There are also people who may have newer replicas of such firearms who believe they are also an exception under the statute.

In a recent case south of Jacksonville, Florida, the defendant was arrested for being in possession of an old muzzle loader rifle. The rifle did not meet the simpler definition of an antique firearm as it was not manufactured in or before 1918, but the criminal defense lawyer argued it was a replica of such a firearm so the defendant was permitted to possess it even though he was a convicted felon. The defendant was convicted of possession of a firearm by a convicted felon at trial, but the criminal defense attorney appealed. He argued that the term “replica”, as it was used in the possession of a firearm by a convicted felon statute, was unclear. If a criminal statute is vague and unclear so that an ordinary person reading the statute would not be clearly informed what is illegal and what is not, the statute can be considered unconstitutional. In that case, the statute could not be used to prosecute that defendant or anyone else unless and until it was changed through the legislature to make it sufficiently clear.

It is Illegal in Florida for a Convicted Felon to Possess a Firearm or Ammunition, but He/She Can’t be Convicted of Both at the Same Time

Published on: October 11, 2013 | by Lasnetski Gihon Law

In Florida, once a person has been convicted of a felony crime (whether the prior conviction was in Florida or another state), that person is not allowed to possess a firearm. That person is also not allowed to possess ammunition. It is a serious felony crime in Florida to be charged with possession a firearm or ammunition as a convicted felon. But what happens when a convicted felon is found in possession of a firearm and ammunition at the same time?

In a recent case near Jacksonville, Florida, the defendant was searched and found to have a handgun near his seat and bullets in his pocket. The state charged him with two separate felony counts- possession of a firearm by a convicted felon and possession of ammunition by a convicted felon. The criminal defense lawyer did not argue that the defendant was not guilty of each charge; he argued that the state was not permitted to charge him with both charges when the defendant possessed the firearm and the ammunition at the same time. This violated double jeopardy.

The court agreed. Because of the wording of the statute, which prohibits the possession of any firearm or ammunition, the law does not allow the state to charge and convict a defendant of separate charges for possessing a firearm and ammunition at the same time.

Domestic Violence Victim Gave Police Legal Basis to Search Car for Gun in Florida Case

Published on: July 9, 2013 | by Lasnetski Gihon Law

In most cases in Florida, the police cannot search a person’s property without a search warrant or consent to search. Probable cause alone is often insufficient for a search. However, there are situations where a search warrant or consent to search are not needed.

In a recent case near Jacksonville, Florida, the police responded to a domestic violence call. The defendant’s girlfriend called the police and said the defendant threatened her with a gun. The police arrived and took a statement from the girlfriend in which she said the defendant threatened her with a gun and then placed the gun in his vehicle. Based on that statement, the defendant was arrested for aggravated assault. The police then took the defendant’s car keys, searched the trunk of his vehicle and found a gun inside. The defendant was then arrested for the additional charge of possession of a firearm by a convicted felon because he had previously been convicted of a felony.

The defendant’s criminal defense lawyer filed a motion to suppress the evidence of the firearm arguing that the police did not have the right to search his car without consent or a search warrant. The court allowed the search because they found the girlfriend’s statement about the gun being in the vehicle gave the police sufficient probable cause to search the vehicle. Normally, the police would then have to take that probable cause and get a search warrant. However, the rules are different for motor vehicles because they can be easily moved while the police take the time to get a search warrant. Because of the vehicle’s mobility, the automobile exception allows the police to search a vehicle at times with probable cause but without a search warrant.

Florida 10/20/Life Law Allows for Consecutive Minimum Prison Sentences for Single Episode

Published on: April 2, 2013 | by Lasnetski Gihon Law

The Florida 10/20/Life law creates very severe penalties for people convicted of certain crimes where a gun was involved. The law provides for a mandatory minimum sentence of 10 years if the defendant displays a firearm, a mandatory minimum of 20 years if the defendant discharges the firearm and a mandatory minimum of 25 years to life if the defendant shoots someone and causes serious injury or death. Additionally, a defendant can be sentenced to multiple consecutive mandatory minimum prison sentences for a single episode if there are multiple victims.

In a recent case in Jacksonville, Florida, the defendant committed an armed robbery with a firearm against two people in a single episode. He threatened both of them with a gun. Police arrived during the armed robberies, and the defendant fired at the officers. The defendant was charged with two counts of attempted murder for shooting at the police officers and two counts of armed robbery. The 10/20/Life statute applied to both charges since the defendant displayed a firearm during the armed robbery and discharged the firearm during the attempted murder of the police officers. After the trial, the defendant was given the 10 year minimum mandatory sentence for each of the two armed robbery charges plus additional 20 year minimum mandatory sentences for each of the two attempted murder charges. Because the mandatory minimum sentences were run consecutively to each other, the defendant was sentenced to a total of 60 years of mandatory minimum prison time.

The criminal defense lawyer objected to the consecutive mandatory minimum prison sentences for a single episode. The court held that the 10/20/Life statute does allow for consecutive minimum mandatory sentences where a defendant discharges a firearm during a single episode but with more than one victim. Therefore, the two consecutive 20 year prison sentences were affirmed. While there did appear to be some precedent for invalidating consecutive mandatory minimum prison sentences where a defendant does not discharge the firearm, the court approved the consecutive mandatory minimum sentences for the armed robberies as well. Therefore, the court held that a defendant can be sentenced to multiple consecutive mandatory minimum prison sentences under the 10/20/Life law even where the defendant uses the firearm in a single episode, if multiple victims are involved.