Jacksonville Criminal Lawyer Blog

Is Drug Residue Sufficient for Police to Forfeit Your Property in Florida?

Published on: February 9, 2017 | by Lasnetski Gihon Law

Florida, like many states and the federal government, has some draconian asset forfeiture laws. For some reason, the state’s practice of forfeiting property from suspects based on very little evidence does not get much coverage, but taking property from people suspected of committing crimes is a favorite practice of police all over Florida.

As you likely know, when the state accuses someone of a crime, that person is innocent until proven guilty, and the state has the burden of proving guilt beyond any reasonable doubt. The rules are quite different in forfeiture cases. In asset forfeiture cases, the police can take a person’s property based on mere suspicion of criminal activity, and the state gets to keep that property while forcing the claimant to jump through a variety of hoops to try to get the property back. While the state has to prove some connection between the property and criminal activity, as a practical matter the claimant generally has to prove there is no connection between the property and any criminal activity. In some cases, the state can forfeit a person’s property even where the state acknowledges it does not have sufficient evidence to charge anyone with a crime.

In theory, at least, if the state wants to forfeit a person’s property, the state generally has to establish that the property represents proceeds from certain illegal activity (i.e. drug sales proceeds) or the property was used to facilitate certain criminal activity. A recent case south of Jacksonville, Florida shows just how little the state needs to do to proceed with a forfeiture of a person’s vehicle. In this case, the police were executing a search warrant and found a pipe with Methamphetamine residue inside a nice vehicle. Often, the standard for whether the police decide to proceed with asset forfeiture is how much they like the property and whether it is paid off. New vehicles that are paid off are good forfeiture targets. Older vehicles or vehicles with large loan payments are not. In any case, this was a nice vehicle that contained a small pipe with a small amount of Methamphetamine residue in it. The police seized the vehicle for forfeiture.

When Does the Hot Pursuit Doctrine Apply in Florida?

Published on: February 5, 2017 | by Lasnetski Gihon Law

In most cases, if the police want to search your residence for drugs, guns or other evidence of criminal activity, they need consent from the owner or someone with authorization or a search warrant. However, there are some exceptions. One such exception is the hot pursuit doctrine. The hot pursuit doctrine involves cases that fall into a subset of exigent circumstances cases. Exigent circumstances generally include emergency situations where the police have a right to conduct a search or seizure and do not have time to get consent or a search warrant. For example, if the police were patrolling an area and heard gunshots and screaming inside a house, they would likely have the right to enter the home immediately without having to take the time to try to get consent or a search warrant.

The hot pursuit doctrine involves a situation where the police are chasing a suspect who they have reason to believe committed a crime and the suspect runs into an area that the police would normally need consent or a search warrant to enter. However, due to the exigency of the chase, the police are allowed to enter the property to continue chasing the suspect.

While this does allow the police to enter properties without the usual need for consent or a search warrant in some situations, its applicability is limited. The greatest protection people have under the Fourth Amendment is in their homes. As a result, the law does not allow police to disregard the search warrant requirement in every case where they are chasing a suspect. The hot pursuit doctrine is normally reserved for situations where the police are chasing someone who presumably committed a felony crime. If the police are going to be allowed to just run onto or into someone’s property, they need to be chasing someone who allegedly committed a more serious crime. The less serious the crime the suspect is presumed to have committed, the less likely the police will be allowed to circumvent the search warrant requirement.

Can I Purchase a Firearm From A Federally Licensed Dealer For Somebody Else Who Isn’t Prohibited From Possessing A Firearm?

Published on: February 1, 2017 | by Lasnetski Gihon Law

Can you walk into a federally licensed firearm dealer’s shop and purchase a firearm for someone else? In other words, can your uncle Joe, who lawfully owns other firearms, give you $900 to go into the local gun shop to buy him a new semi-automatic? The United States Supreme Court has said, “No.” This sale, commonly referred to as a “straw purchase,” is illegal under federal law. Even though both you and your Uncle Joe can lawfully purchase firearms, it is a crime to do that if you are the actual buyer on Form 4473, if you are actually purchasing the firearm for a third party.

Gun-shop-300x200 In 2009, Bruce Abramski, a former police officer, walked into a local gun shop and purchased a firearm for his uncle. His uncle sent him $400 to make the purchase. Under federal law, the firearm dealer was required to record the buyer’s name, age and place of residence. Abramski filled out ATF Form 4473 stating that he was the actual purchaser. Abramski walked out and immediately transferred the firearm to his uncle. Both Abramski and his uncle were eligible to lawfully purchase a firearm from a federally licensed firearm dealer. Neither one was a convicted felon or otherwise a prohibited person.

So, why wasn’t what Bruce Abramski did legal under the Second Amendment?

A Defendant in Florida Does Not Always Have a Right to a Jury Trial in a Criminal Case

Published on: January 24, 2017 | by Lasnetski Gihon Law

Jury-Room-300x225 Most people have heard through school, interaction with the judicial system, television shows or otherwise that there is a constitutional right to jury trial for people charged with a crime. This is usually true, but it is not true in every case. There is an exception for certain minor crimes where a defendant does not have a right to a jury trial and the judge decides whether or not the defendant is guilty of the crime. That exception involves crimes where the defendant cannot be sentenced to jail or prison for more than six months. In other words, if a defendant is charged with a minor crime and the maximum penalty is six months or less in jail, the defendant is not entitled to a jury trial. The parties might agree to a jury trial or the judge might insist on a jury trial, but the law does not give the defendant a right to a jury trial if he/she wants one and the judge will not allow it. Of course, this would only apply to minor misdemeanors, and it would never apply to felonies. However, some people can be seriously impacted by any criminal conviction no matter how minor the charge or by any time in jail and may want a jury trial to protect his/her rights.

It is important to understand that a defendant is always entitled to a jury trial in a criminal case if the potential penalty for a conviction of the crime is more than six months. It does not matter if the judge is not likely to sentence the defendant to more than six months in jail or even if the judge says he/she will not do it. As long as the law allows for a sentence of more than six months in jail, the defendant can have a jury trial.

For instance, there was a case just south of Jacksonville, Duval County, Florida where a defendant was charged with possession of less than an ounce of marijuana. This is a misdemeanor crime, but as ridiculous as it may seem, it carries a potential penalty of a year in jail. The defendant wanted a jury trial, but the judge denied the request because he said he had no intention of sentencing the defendant to jail time if he was convicted of the crime. The defendant had his trial with the judge as the decision maker (referred to as a bench trial), the judge found him guilty and the judge sentenced him to no time in jail.

Florida Police Executing Arrest Warrant Do Not Have a Right to Search Surrounding Property

Published on: January 20, 2017 | by Lasnetski Gihon Law

Police-Officer-with-Arrest-Warrant-illustration-300x261 In Florida, the general rule is that the police cannot search a person’s property without a search warrant or specific consent from the owner of that property. There are exceptions, of course, but a police search without a search warrant or consent is generally going to be illegal. When the police arrest someone, they can always search that person because the police have a right to determine if the suspect has any weapons or evidence that can be destroyed on him/her. However, that search is generally limited to the person and only after a valid arrest. The police cannot go searching a person’s vehicle or home just because of an arrest.

In a recent drug case near Jacksonville, Florida, the police had an outstanding warrant for the defendant and received a tip that he was at a particular residence. They located the suspect and arrested him in the front yard. The police then walked around to the back of the residence and looked through a window where they saw guns and illegal drugs inside the house. They used this information to obtain a search warrant to search the house and seize the guns and marijuana.

The criminal defense lawyer filed a motion to suppress the evidence of the guns and marijuana arguing that the police did not have a legal basis to walk to the back of the defendant’s property to look through the window. Police cannot walk into a person’s home to search without a search warrant or consent, and this also applies to what is called the curtilage of a home, which is the area of land surrounding a residence including any closed structures. In this case, the area next to and behind the house was considered the curtilage. It is often considered the area adjacent to the home where the public is not normally expected to go. For instance, a member of the public might walk up a person’s driveway to knock on the front door, but he/she is not likely to walk around a house and look through windows on the side or back of the house.

Police in Florida Cannot Use Informant to Get Statement from Defendant That Police Could Not Otherwise Obtain

Published on: January 13, 2017 | by Lasnetski Gihon Law

Mans-SIlhouette-300x218 As most people are aware in Florida and elsewhere, when the police arrest a suspect or take a suspect into custody, the police are required to read the suspect the Miranda warnings before attempting to take a statement from the suspect. The Miranda warnings discuss a variety of rights, but a primary right that must be disclosed to the suspect is that he/she has a right to remain silent. This means that the suspect can refuse to speak with the police at any time, and the state cannot use the defendant’s silence against the suspect in court. In order for a defendant to assume the protection of the Fifth Amendment right to remain silent, the suspect must clearly state that he/she would like to remain silent or that he/she would like to speak with an attorney before talking to the police. Vague or unclear statements about the right to remain silent and the right to an attorney are not generally held up in court. Additionally, the police want to talk to suspects for a reason- to get evidence they can use to convict them. Therefore, the police may disregard anything but a clear and confident declaration of the right to remain silent and the right to talk to an attorney. If the police think the suspect’s position leaves room for interpretation, the police will often move forward with trying to take a statement.

However, once the suspect is clear that he/she does not want to talk to the police or wants to speak with a lawyer, the police are required to shut down any attempts to take a statement from the suspect. In other words, once a suspect or defendant invokes the right to remain silent, that remains in effect for the remainder of that case. The defendant can always change his/her mind and make contact with the police or the state, but the state is not supposed to try to take a statement from the defendant on their own initiative.

This applies to the police directly trying to speak to the defendant, but it also applies to the police trying to get a statement from the defendant using more indirect methods. In a recent sexual battery case south of Jacksonville, Florida, the defendant was arrested for sexual battery and the police tried to take a statement from the defendant after his arrest. After he was read his Miranda warnings, the defendant requested a lawyer and refused to give any statements. The defendant was taken to jail and remained there as he was unable to bond out. While in jail, the defendant started talking about his case to one of the inmates in his cell. That inmate went to the police and told the police that the defendant was talking about his case.

DUI Checkpoints Have to Follow Specific Rules in Florida But Other Checkpoints Do Not

Published on: December 28, 2016 | by Lasnetski Gihon Law

DUI-Checkpoint-Sign-300x214

Every now and then, and often during holiday time like New Year’s Eve coming up, the police in Florida and other states will set up DUI checkpoints in strategic areas of the city. These checkpoints are normally located down the street from a popular bar or other area where people often drink alcohol. Florida law does not allow the police to just set up a checkpoint at any time whenever and wherever they want. The police have to plan their DUI checkpoints and follow certain rules for a checkpoint to be legal. For instance, the police must get approval in advance, they must establish certain written rules for the checkpoint, the checkpoint can only last for a certain period of time and they must follow all of those rules during the checkpoint. The police cannot just use their discretion to pick and choose which drivers they are going to stop. They must stop drivers based on a predetermined plan. For instance, the police can decide to stop every fourth vehicle, but they cannot use some arbitrary criterion to stop vehicles as they go. Assuming the police establish proper rules and follow them, they are allowed to set up DUI checkpoints and stop drivers as they come through to determine whether they are driving under the influence of alcohol or drugs.

Checkpoints and road closures for other purposes do not have to follow those same rules. For instance, in a DUI case just outside of Jacksonville, Florida, the police had blocked off the road for an air show and set up a checkpoint where only certain authorized vehicles could pass. The defendant approached the checkpoint in his vehicle, rolled down his window and asked the police officer for directions. The police officer noticed that the defendant smelled of alcohol and slurred his speech and he saw an open container of alcohol in his vehicle. The police officer stopped the defendant, investigated further and arrested the defendant for DUI.

The criminal defense lawyer filed a motion to suppress the evidence of the defendant’s impairment arguing that the police officer conducted a checkpoint that did not establish the rules necessary for a proper DUI checkpoint. The court disagreed because this was not a DUI checkpoint. The police were not stopping drivers as they approached to check them for DUI. They were only stopped and asked to turn around because they were not allowed to pass. Because this was not a normal DUI checkpoint where some drivers were checked for potential impairment, the police were not required to have written, specific rules for the checkpoint. As a result, the police officer was entitled to investigate further for a potential DUI arrest when the driver appeared to be drunk driving.

Initial Search of Defendant Was Lawful, But No Do-Overs

Published on: December 22, 2016 | by Lasnetski Gihon Law

This unlawful search took place in a Florida school south of Jacksonville, Florida. In this case, students at the Florida school reported to school officials that some other students were playing with a taser on school grounds. The school security officer spoke to some kids who indicated that the suspect was the one with the taser, however the suspect had gone home for the day. The next day, the principal and security officer had the suspect come into the principal’s office, and they searched her purse. They did not find the taser and let her leave for class. Later that day, they brought the suspect back into the principal’s office, searched her purse and found a taser. She was arrested for possession of a weapon on school property, which is a felony.

The criminal defense lawyer filed a motion to suppress the evidence of the taser arguing that the principal and security officer did not have a legal basis to conduct the second search after the first search did not result in any incriminating evidence. The rules for searching students and their property are a little different in schools. Students and their property can be searched at a school if there is reasonable suspicion that the student is involved in criminal activity or evidence of a crime will be found. A search of a student at school is considered reasonable as long as the search is reasonable in scope. At schools, the more serious the threat, the more leeway the school or a police officer will have in conducting a more extensive search.

In this case, because students indicated the suspect had a weapon on school property, the court ruled that the first search of the student was reasonable. However, since the first search was unsuccessful, the school could not conduct a second search of the same property later without new information that evidence of a crime was present. In other words, the school and/or the police only get one shot at a search based on reasonable suspicion, and if they do not find anything, they cannot go back for a second search later without some new evidence that justifies it. A second search of property that initially yielded no results is a search based on mere suspicion which does not meet the appropriate search and seizure standard. For the second search to be justified, the state would have had to present testimony of new evidence that was uncovered after the first unsuccessful search. The weapon charge was thrown out.

Police in Florida Can Knock on Your Door Without a Warrant, but Their Access is Limited

Published on: December 16, 2016 | by Lasnetski Gihon Law

In order for the police to be able to search your home for evidence of a crime, they either have to have a valid search warrant or they have to have consent from the owner or someone with proper authorization to give that consent. For the latter method, the police are generally allowed to walk up to your front door, knock and ask to come inside. As long as people give the police permission to come inside their homes and search, the police almost never have to get search warrants by explaining to a judge what legal reason they have to enter a residence. Therefore, it is important for people to understand that they can always (and usually should) refuse when police ask to search their property.

Unless your property is gated or otherwise partitioned from public access, the police can go to your door, knock and try to get permission to enter in Florida. What can the police do if you do not answer the door or if you are not home? If you are not home, they cannot enter since they would not have permission. They would have to get a search warrant from a judge. If you are home, the police can see or hear that you are home and you do not come to the door, can they enter the home?

In a recent case near Jacksonville, Florida, police went to the defendant’s apartment to investigate a battery call, but they also had information that the defendant was selling marijuana. When they arrived at the apartment, they knocked, but the defendant did not answer. The police walked a few feet to the front window and were able to see the defendant inside. They knocked on the window, but the defendant still did not answer. They sent the defendant a text message asking if he would come outside, and he still did not answer. At this point, the police claimed to have smelled marijuana coming through the air conditioning unit and then got the apartment manager to let them inside the apartment. (If this testimony sounds ridiculous, the criminal defense attorney had an air conditioning professional testify that this would not have been possible with the defendant’s air conditioning unit. This is another sad statement as to the lengths police will go to arrest people for possessing a plant.)

The State Can Compel a Defendant to Provide the Cell Phone Password With a Search Warrant in Florida

Published on: December 13, 2016 | by Lasnetski Gihon Law

In our last post, we discussed when the police can search the contents of a cell phone belonging to a suspect. We referenced a case where the police illegally searched a password protected cell phone that had been abandoned by the defendant. Since it involved an abandoned cell phone, that was a strong statement that the police are not generally going to be able to search a password protected cell phone without a search warrant or specific consent from the owner of that cell phone. Given that cell phones these days often contain a wealth of information that can be used by the state to incriminate a defendant, it is important for people to protect their cell phones and make sure they understand the Constitution affords them a right to privacy in the information contained in that cell phone.

This post refers to another case near Jacksonville, Florida that looked at this issue of when the state can access the information in a defendant’s cell phone. In this case, the defendant was arrested for using the camera on his cell phone to violate the privacy of women in public. He was arrested for video voyeurism. After he was arrested, the state requested consent to search his cell phone to look for pictures and videos of the victims. The defendant refused. The police appropriately applied for a search warrant for the cell phone. Through their investigation and interview with the defendant, they obtained sufficient information about the cell phone to adequately identify it for a search warrant application. It is unlikely that a judge would grant a search warrant application for a generic cell phone belonging to the defendant that the police knew nothing about and did not have in their possession. Because the police had information about the specific cell phone allegedly used in the crime, the search warrant was granted.

The police located the cell phone, but it was protected by a password and the defendant would not provide it, as was his right. The state then filed a motion to compel the defendant to provide the pass code for the cell phone. The criminal defense lawyer argued that a defendant has a constitutional right against self incrimination, therefore the defendant could remain silent about all aspects of the case, including his cell phone pass code that could lead to the discovery of incriminating evidence.