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Cyberstalking-Blog
A 20 year old student at the University of North Florida was recently the victim of a man who created fake social media accounts using her name and likeness.  Her Facebook photos were used to create fake social media accounts on Instagram and Tinder.  The fake accounts requested money be sent and stated that the victim was “sexually ready.”  So, was this a crime?  And if so, what crime was it?

The young man that created these fake social media accounts was arrested and charged with Cyberstalking.  Cyberstalking is defined in Florida Statute Section 784.048(1)(d) and requires:

  1. engaging in a course of conduct to communicate, or to cause to be communicated, words, images, or language,
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On July 6th, 2016, Corrine Brown, along with Elias Simmons, was indicted on a twenty four (24) count federal indictment.  You heard me right, folks.  24 counts.  The charges all stem from her relationship with a organization called the One Door for Education – Amy Anderson Scholarship Fund.  The basic allegations are that Corrine Brown, when she was a congresswoman, would solicit contributions to this fund.  The proceeds from the contributions were supposed to go to scholarships.   The government has alleged that the vast majority of the money taken into this scholarship fund went into the pockets of Corrine Brown, Elias Simmons and others.  Specifically, the federal government has alleged that out of approximately $800,000 contributed to the fund, only about $10,000 went to actual scholarships.  So let’s break this down and look at the various charges.

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The Government alleges that Corrine Brown and others solicited money into the One Door for Education Scholarship Fund and then deposited some of those proceeds into their personal accounts for personal use.

Count 1 – Conspiracy to Commit Wire Fraud and Mail Fraud

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In Florida, it is illegal for anyone to possess a “weapon” at school or a school-sponsored event without authorization.  A violation of this criminal statute is a third degree felony that carries up to five years in prison.  There are a variety of items that are considered “weapons” under the statute including razor blades and box cutters, in addition to the obvious weapons like guns and knives.  There is also a separate Florida statute that adds other items to the definition of a “weapon” such as brass/metal knuckles, tear gas and slingshots.  Whether other items are considered “weapons” under the statue is unclear.  Pocket knives are specifically excluded from the definition of a “weapon”, but what is considered a pocket knife depends on its size and other characteristics.  The obvious problem is that the Florida laws and statutory definitions do a poor job of telling students and parents what items are legal and what items could result in a felony charge.

In a recent weapons case near Jacksonville, Florida, school officials conducted a random search of students at a local public school.  They removed the kids from the classroom, scanned them with a metal detector and searched each of them.  They also searched their book bags and other belongings.  They found a BB gun in the defendant’s book bag.  The school officials said the BB gun looked and felt like a real gun.  It was not loaded.  The defendant was arrested for possession of a weapon on school property.

The criminal defense lawyer filed a motion to dismiss the charge since a BB gun is not a deadly weapon as referenced in the statute.  That statute lists certain specific items that are considered weapons along with any other “deadly weapon.”  BB guns are not specifically listed as “weapons” in the statute.  Therefore, the criminal defense attorney argued that since the BB gun is not specifically mentioned as a “weapon” in the statute, and a BB gun certainly is not a “deadly weapon” as also mentioned in the statute, the defendant cannot be charged with possession of a weapon on school property for a BB gun.

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In Florida, the state has a certain period of time from the date a crime has occurred to prosecute the defendant.  Like other states, Florida has statutes of limitation which set out a number of years within which the state must prosecute a person for committing certain crimes.  The period of time provided in the statute of limitations depends on the nature of the crime.  Two years is common for misdemeanor crimes in Florida, and four to five years is more common for felony crimes.  For instance, for a felony, if the state does not prosecute a defendant within five years of the date of the crime, the criminal defense lawyer can file a motion to dismiss the case because the statute of limitations has run.  This situation commonly occurs when the police believe a suspect has committed a crime and issue a warrant or capias for that person.  However, the suspect is not caught and brought to court for several years, beyond the time period indicated in the statute of limitations.  In that case, the criminal defense attorney may be able to have the case dismissed.

However, there are exceptions to the statute of limitations.  The Florida statute itself is fairly ambiguous, but a recent Florida Supreme Court case attempted to clarify one of the confusing parts of the statute.  In this case, the defendant allegedly committed the crime in 2009, and a warrant was issued for his arrest.  The statute of limitations for the crime was three years.  The state did not arrest and charge the defendant until later in 2012, more than three years after the crime was committed.  The criminal defense lawyer filed a motion to dismiss the case because the state was attempting to prosecute the defendant more than three years after the crime occurred.

The state argued that the statue of limitations was tolled, or delayed, because the suspect was continuously out of state for part of those three years, as the statue specifically mentions a defendant being out of state as an exception to the running of the limitation period.  The criminal defense attorney argued that the state has to show that they diligently searched for the defendant in order to avail itself of the benefit of the tolling of the statute.  The statute is not clear as to how these two factors interact with each other.  The question is whether the state merely has to show that the defendant was out of state for a continuous period, which tolls the statute of limitations during that time, or whether the state also has to prove they diligently searched for the defendant and his/her absence thwarted their prosecution of the defendant.

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Some people in Florida believe they are only at risk of a DUI arrest if they are caught driving on the public roads by a police officer while impaired from alcohol or drugs.  That is not true.  A person does not even need to be driving to be arrested and convicted of DUI.  The Florida driving under the influence statute confers criminal liability on anyone who is driving while impaired from alcohol or drugs or in actual physical control of a vehicle while impaired from alcohol or drugs.  We have dealt with many cases where a person was arrested for DUI while resting or sleeping in a vehicle that is not even running.  The state can move forward with a DUI case in that situation if the suspect had the keys to the vehicle and it was capable of being driven, even if the keys were not in the ignition at the time.

Additionally, a police officer can initiate a DUI investigation when the suspect is on private property, as opposed to driving on the public roadway, in some situations.  In a recent DUI case just south of Jacksonville, Florida, witnesses observed the suspect crash through the barricade at the entrance to a private parking garage and proceed to park inside.  The witnesses called the police, and a police officer found the suspect in the parking garage.  He initiated a DUI investigation and ultimately arrested him for DUI.  The criminal defense lawyer moved to dismiss the DUI charges because the incident took place in a private garage.

Florida law is not exactly clear as to a police officer’s authorization to detain, investigate and arrest someone for DUI inside a private garage or other private property.  It is certainly possible that if all of the events of this incident occurred within the confines of the private property, the police officer would not be authorized to conduct a DUI investigation.  However, in this case, the defendant crashed through the barricades at the front of the property from a public roadway and proceeded into the private garage.  Additionally, the driver did not pay to enter private garage as patrons were supposed to if they wanted to lawfully use the garage.  The court found that this was sufficient to allow the police officer to conduct a DUI investigation and ultimately make the DUI arrest.  Had the defendant entered the garage appropriately and shown signs of impairment once inside, perhaps by hitting a parked vehicle inside, it is not clear if the police officer would have been permitted to conduct a DUI investigation at that point.

 

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Police officers like marijuana arrests because they are easy- they don’t require much work, they don’t require much thought, and they don’t require much, if any, investigation.  This is one of many reasons why dealing with the war on drugs that primarily serves to waste money and increase the size of government is so difficult  Despite the government’s desire to continue the war on drugs, it is not an excuse to disregard the Constitution and the right to be free from unreasonable searches and seizures.

In a recent possession of marijuana case near Jacksonville, Florida, the suspect was riding his bicycle at night without proper lighting.  There was no evidence of any criminal activity, but riding a bike without proper lighting is a traffic violation.  Based on this lighting malfeasance, two police officers saw fit to stop their vehicle and detain the suspect.  The officers asked the suspect for his ID, and he opened his bookbag to retrieve it.  The suspect tried to shield the officers from seeing into the bookbag when he obtained his ID but did not act suspiciously.  Based on this, the officers handcuffed the suspect and seized the bookbag.  The officer then claimed to smell marijuana, searched the bookbag and found small bags of marijuana inside.  The suspect was arrested for possession of marijuana.

The criminal defense lawyer filed a motion to suppress the marijuana evidence.  The police do have a right to stop someone for committing a traffic violation, even one as minor as this one.  However, they can only stop the person for the purpose of writing a ticket for the violation.  They cannot detain the person for any longer period of time or seize the person by handcuffing him unless there is specific evidence of criminal activity.  In this case, there was none.  The suspect complied with the officer and obtained his identification from his bag.  If the suspect did so in a way the officer did not like, that is not a specific indicator of criminal activity.  If the police officer claimed he searched the bag because it could have had a weapon or drugs without specific evidence, then any police officer could search anyone with a bag, a car, pockets, etc and claim a suspect could have something illegal in a place the officer cannot see.   That is not how the Constitution works.

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In Florida, we have a law commonly known as the accident report privilege.  In all crashes that involve an injury or significant property damage, the police officer responding to the crash must prepare a crash report that documents information about the crash and the people involved.  When a person is involved in an auto accident in Florida, that person must remain at the scene and provide certain information to the responding officer.  One can see how a duty to remain at the scene of the crash and provide information to the police might conflict with a person’s right to remain silent if there might be criminal implications to the crash.  Some crashes obviously involve criminal activity, such as driving under the influence of alcohol or drugs, hit and run and/or driving with a suspended license.  People have a right to remain silent rather than make incriminating statements to the police.

In order to reconcile this conflict, the Florida accident report privilege provides that the state cannot use in court as evidence a person’s statement made to the police for the purpose of completing the crash report.  In other words, if a driver makes an incriminating statement to the police officer while he/she is conducting a crash investigation, the state cannot call the police officer to repeat that statement in court in the state’s case.

However, there are exceptions.  First, the state might be able to use a statement made by the driver for the purpose of completing the crash report as impeachment.  If at trial the defendant waives his/her right to remain silent and testifies in court about the crash, the state or the opposing party may use the statement made to the police at the time of the crash against the driver if it is inconsistent with what the driver is saying in court.  Another exception to the Florida accident report privilege exists where the driver does not follow the law after the crash.  For instance, if the driver is involved in a crash and the flees the scene, he/she loses the benefit of the accident report privilege.  Florida cases have ruled that where a driver is involved in an accident that results in a death and then leaves the scene of the crash (which is a serious felony crime in Florida), the driver loses the benefit of the accident report privilege if he/she gives a statement to the police once they locate the driver.

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In Florida, a theft is a felony offense, known as grand theft, if the value of the property stolen was $300 or more.  If the value of the property is significantly higher, the offense can be a second degree felony or a first degree felony depending on the circumstances.  If the value of the property is less than $300, the offense is a misdemeanor.  Therefore, when someone commits a theft, the level of the crime and how serious it is depends heavily on the value of the property stolen.  It is up to the state to prove that value beyond a reasonable doubt.  If the state cannot prove the value of the property is $300 or more, the offense will be a misdemeanor even if it seems obvious that the property is more valuable.

For example, in a recent theft case near Jacksonville, Florida, the defendant stole some used fencing material from a business.  The fencing material was old and had not been in use recently, so the business did not know its value or what they paid for it.  At the trial, the state did not present any evidence of the market value of the fencing but did have someone from a hardware store testify that the replacement value of the fencing was $450.  Based on that testimony, the defendant was convicted of grand theft.

The criminal defense attorney appealed the grand theft conviction and won.  According to the Florida theft statute, the state must prove beyond a reasonable doubt what the market value of the stolen property was at the time it was stolen.  If for some legitimate reason the state cannot determine the market value at the time of the theft, the state can rely on the replacement value of the property near the time of the offense.  In this case, the state did not attempt to prove the market value of the stolen property.  The state also did not establish why they were unable to prove the market value.  Without such proof of why they could not determine market value, the state was not permitted to use replacement value instead.  Additionally, the witness who testified about replacement value did not adequately prove replacement value.  The evidence of replacement value has to relate to similar property around the time of the theft.  The state must have some evidence of the condition of the property when it was stolen and/or how new the property was.  For instance, if used fencing material was stolen some time ago, the state cannot just being in a witness to say what new fencing would cost today.  The state must offer evidence of what used fencing materials would cost similar to what was stolen.

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A recent encounter between a suspect and a police officer near Jacksonville, Florida illustrates that police do not have free reign to question suspects and detain them based on mere suspicions or the fact that they do not like a person’s answers.  In light of recent police shootings and some people’s automatic defense of police regardless of the facts or the relevant law, it seems as if some people believe that it is the obligation of citizens to comply with police no matter how unlawful the police conduct might be.

In a recent cocaine possession case, a police officer observed the suspect standing next to a car in the middle of the road.  When the police officer approached, the car fled but the suspect remained on foot.  The police officer asked the suspect his name, and he gave a name that the police officer later determined was a false name.  Once the police officer ran the name and checked with another individual nearby who knew the suspect, he determined that the name was false.  He arrested the suspect at that time.  After the arrest, the police officer searched the suspect and found that he was in possession of cocaine.  After arresting the suspect for possession of cocaine, he got the suspect’s true name and learned that he had a separate felony warrant outstanding.

The criminal defense lawyer filed a motion to suppress the evidence of the cocaine based on the fact that the defendant was illegally detained and illegally arrested.  The appellate court agreed.  The defendant was not breaking the law when the police officer approached him.  The police officer is permitted to ask questions of anyone, but when the defendant gave a false name, that was not against the law either.  Giving a false name can be a misdemeanor crime in Florida, but only if the defendant was lawfully detained or arrested at the time.  At the time the defendant gave the false name, the police officer did not have any legal reason to detain or arrest him.  Therefore, giving a false name at that time was not a crime under Florida law.

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In Florida, it is a crime to make a threat to kill or cause bodily injury to someone or someone’s family member.  In fact, it is a very serious second degree felony punishable by up to 15 years in prison if the threat is communicated to the victim or his/her family in writing.  With the popularity of social media and sites like Facebook, Twitter and many other sites that allow people to communicate with others over the internet, people should understand that “in writing” includes electronic communications.  Therefore, a person could make a threat over Facebook to kill or injure someone and send it to the other person and face a serious felony charge as a result.  These “written” threats are more serious than verbal threats under Florida law, and of course, generally easier to prove.

There are some limitations to this law.  In a recent case near Jacksonville, Florida, a defendant sent out a post on Twitter saying he was going to shoot up his school.  When someone sends such a post on Twitter, anyone following the author can see it, and those people can send the post to anyone else.  In theory, anyone on Twitter could eventually see the post and where it came from.

Not surprisingly, this post made the rounds, and the kid who wrote and sent it was arrested for making written threats, but not before the school was notified, the students were evacuated and many police officers responded to the school.