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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.

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We’ve all seen the news footage of religious protests at the funerals of deceased service members.  People yelling and screaming and carrying signs with hateful messages.  These are images that get most rational people’s blood boiling.  But did you know that in the State of Florida, it is actually a crime?


Is it a crime to protest at a funeral?


Yes. Florida Statute §871.015 makes it a crime to knowingly engage in protest activities or to knowing cause protest activities to occur during or within 1 hour before or 1 hour after the conducting of a funeral or burial at that place.

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In the State of Florida, you can be compelled to perform Field Sobriety Exercises.  This doesn’t mean that the officer can physically force you to perform the exercises.  It simply means that the officer does not have to obtain your consent and your refusal to perform the field sobriety exercises can be used against you in court.  So how would this play out?  Let’s take a look:


What are Field Sobriety Exercises?


Field Sobriety Exercises are physical tasks that an officer will ask you to perform when that officer suspects that you are driving while under the influence of alcoholic beverages or drugs.  Some of the exercises are standardized, meaning that the instructions and the way they are conducted are the same everywhere in the United States.  Some of the exercises are not.  Some examples of Field Sobriety Exercises are the Walk and Turn exercise, the Finger to Nose exercise, the One Leg Stand Exercise, the Rhomberg Alphabet exercise, and the Rhomberg Balance exercise.  Each exercise is designed to divide your attention so you are concentrating on different tasks.  For example, during the walk and turn exercise, you have to listen to instructions, remember to keep you arms by your sides, place one foot in front of the other heal to toe, walk down a line, take 9 steps, turn taking small steps during the turn and take 9 steps back, all while not swaying, raising your arms or stopping.  The officer will mark down each thing that you do wrong and will form an opinion on whether you are impaired or not based on how you do on the Field Sobriety Exercises.  In the real world however, the officer may have already formed an opinion about whether you are impaired before you ever start the field sobriety exercises and they may use the results of the field sobriety exercises to gather evidence against you.

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Criminal defense attorneys in Florida often struggle to answer questions related to what is and what is not considered child abuse in the State of Florida.  The reason is that the child abuse statute is so very broad and covers such a wide array of actions, some of which do not even include physically touching a child.  That statute often runs up against the age old adage that a parent has the right to raise their child as they see fit.

Ask ten different people and you will get ten different answers on how a child should be punished for different behaviors and actions.  What was considered acceptable parental corporal punishment decades ago could be considered child abuse today.  So, what is considered child abuse today?


What is the child abuse law in Florida?

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adobe-spark-post-8There has been a lot of talk about new legislation regarding firearms, but what is the current status of the law as it relates to guns?  Criminal defense lawyers know that there are plenty of firearm statutes with extreme high range of punishments already on the books in Florida.  These laws are coupled with very long minimum mandatory sentences.  There are also many different and often overlapping state and federal laws regulating all aspects of firearm possession, use, distribution, manufacturing, and more.   This blog will lay out some of the more common firearm statutes in the State of Florida.


What are the common gun laws in the State of Florida?


Many of the Florida gun laws are located in Chapter 790 of the Florida Criminal Statutes. Here are some of the more common statutes:

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As every criminal defense lawyer knows, there are some very draconian minimum mandatory sentences in Federal criminal court.  There are federal minimum mandatory sentences for certain drug offenses, firearm offenses, and for defendants who have certain convictions.   There are two ways to break the minimum mandatory sentence, which then allows a judge to sentence you below the minimum mandatory.  The first is called “substantial assistance.”  Basically, if you snitch and the government wants your information, uses your information, and they determine that it was worthy of a sentence below the minimum mandatory, they can file a substantial assistant motion and if granted by the judge, the minimum mandatory would no longer apply.  You can only get less than the minimum mandatory sentence if the prosecutor files the motion.  If they decide not to file the motion, the judge must sentence you to the minimum mandatory sentence up to the maximum sentence.  But what if you don’t want to snitch? What if you don’t have any information that the government is interested in?  There is one more option that will allow the judge to sentence you below the minimum mandatory sentence: Safety Valve.


What is Safety Valve?


The “Safety Valve” provision is a provision of law codified in 18 United States Code §3553(f).  It specifically allows a judge to sentence you below the minimum mandatory required by law.  However, you must be eligible.  There is also a two level reduction in the sentencing guidelines under United States Sentencing Guidelines §2D1.1(b)(17).

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When can a police officer stop and search you?  This is a question often asked to criminal defense lawyers, but can rarely be answered with any degree of specificity.  Why?  Because whether a police officer has illegally stopped and searched you is a mixed question of fact and law.  Rarely, are two cases exactly the same factually.  So, it is up to the trial judge to listen to the testimony and evidence at a suppression hearing, to determine which facts he or she believes to be true and whether under those facts, the officer acted within the law based on prior case law.  Recently, in a rare reversal, the Eleventh Circuit Court of Appeal reversed a Federal District Judge’s denial of a motion to suppress.  Here’s why?


The stop and seizure of Patrick Heard


Officers received a 911 call stating that there were gunshots in the woods behind an apartment complex.  Patrick Heard was walking his dog at the apartment complex when two police officers arrived and approached him approximately 15 – 29 minutes after the 911 call.  The officers asked Patrick if he had heard gunshots.  Patrick told the officers that he had heard gunshots coming from the woods.  The officers asked Patrick for his identification, which he readily provided.  The address on his license didn’t match the address to the apartment complex so the officers asked him if he was staying with someone in the apartment complex.  Patrick answered that his mother lived at the apartment complex and pointed up towards an apartment, but didn’t provide the apartment number.  According to the officers, Patrick was swaying.  The officers asked Patrick if they could search him and he stated, “I didn’t do anything wrong.”  An officer told Patrick to raise his hands so they could pat him down.  The officers found a firearm on Patrick and arrested him because he was a convicted felon in possession of a firearm.

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adobe-spark-postYou were arrested or given a Notice To Appear.  It was a petit theft, grand theft, possession of drugs, or some other non-violent offense.  You’ve never been arrested before, or if you have, you have a very minor prior record.  You’re scared.  You don’t know what to expect.  Will you go to jail?  Will you lose your job?  Will this haunt you forever?

In many cases, you may be eligible for pretrial diversion or pretrial intervention.  In Duval County, it is commonly referred to as PTI (Pretrial Intervention).  For many non-violent, less serious offenses, the prosecutor has the discretion to divert your case from the court system.  I often like to refer to it as a kind of front-loaded probation.  If you complete certain conditions, the State agrees to drop the charges against you and you may be eligible to have your record sealed or expunged.


How can I get PTI? 

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A motion to suppress is an important arrow in the quiver of any criminal defense attorney.  It is a weapon to defend the true meaning of the Fourth Amendment to the Constitution of the United States.  It is a powerful tool that protects all Americans from unreasonable searches and seizures by law enforcement officers.  Anytime a law enforcement officer detains you, searches you or your property, or seizes you or your property, there is a question whether that detention, search and/or seizure was lawful and reasonable.  Your criminal lawyer would file a motion to suppress and the burden would be on the State to prove the police action was lawful and reasonable.


Amendment IV

The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no warrants shall issue, but upon probable cause, supported by oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.

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adobe-spark-post-10A Federal Grand Jury is an integral part of almost any federal criminal case.  Grand jury testimony often becomes a key issue in a federal criminal trial.  But what is a Grand Jury exactly?  How is it different than any other jury?  How is the federal system different than in the Florida criminal justice system?   What are your rights when it comes to a Grand Jury?


What is a Federal Grand Jury?


A Federal Grand Jury is a group of citizens that come together to determine whether there is probable cause to issue an indictment in federal court.  An indictment is the charging document that lays out the crime or crimes that a person is being charged with.  A Grand Jury must have between 16-23 people.  The Grand Jury will generally meet over the course of several months and will sit for many cases.  The court will appoint one foreperson to serve as a type of chairperson who organizes and leads the discussions.

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