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.
When the police are investigating a crime in Florida and seize property that they believe is proceeds of criminal activity or used to facilitate criminal activity, a forfeiture case might result. A forfeiture case is a separate case where the state attempts to assume ownership of property that they seize as part of a criminal investigation. Civil forfeiture cases receive a lot of criticism in Florida and other states, and for good reason. The forfeiture laws allow the police to take people’s property and hold onto it indefinitely. There is a low threshold for the state be able to keep the property and, as a practical matter, it is often the job of the claimant to prove the property was legitimate in order to get the property back. This process can take months or years to resolve. In many forfeiture cases, it seems more accurate to say the person trying to reclaim his/her property is guilty until he/she can prove innocence, at least in relation to the property at issue.
Another characteristic of forfeiture cases that many people do not understand is that the state does not need to convict a person of a crime in order to be allowed to forfeit the property that is allegedly related to a crime. A person can be found not guilty at trial or the criminal case can be dropped, yet the state can still successfully forfeit property. In fact, the police do not even have to arrest anyone and the state does not even have to charge anyone in order to move forward with a civil forfeiture case. We have handled several cases where an arrest of anyone was never even a consideration, but the state still attempted to forfeit large sums of money.
Needless to say, in practice, the state’s practice of forfeiting property is very questionable. As favorable to the state as it may be, there is, in fact, a procedure whereby a person can claim and try to recover his/her property. Forfeiture cases in Florida are considered civil cases. As a result, the rules of civil procedure apply. This is good in some respects as it allows for broad discovery (collecting evidence from the other side) procedures. On the other hand, it is bad for claimants as the state has a lower threshold to win its case. The state’s burden is a preponderance of the evidence (just greater than 50%) rather than the higher standard of beyond any reasonable doubt in criminal cases.
The prior post discussed the difference between a consensual encounter with the police in Florida and something more involved. The police in Florida are free to engage people in consensual encounters to ask questions or make observations, and people are free to refuse to answer questions or otherwise cooperate. Once an encounter becomes more like a seizure, i.e. a situation where the person does not feel like he/she can freely leave, the police must be able to point to specific facts indicating there is evidence of criminal activity to continue.
A recent firearms case near Jacksonville, Florida provides another good example of what the law allows regarding searches and seizures in Florida. In this case, the police approached an apartment responding to a noise complaint. They knocked on the door, the suspect opened it and then quickly closed it. It is important for people to understand that they have the right to do this. No one has to answer the door if the police are knocking without a warrant. If a person opens the door and decides he/she does not want to speak with the police or does not want to speak with police any longer, that person can end the conversation. As long as there is no evidence of a crime or a warrant, the police cannot enter the home. Of course, in reality, the police may not be satisfied with that response, but at least on paper, it is permitted.
In this case, the police claimed they could smell an odor of marijuana coming from the apartment when the occupant briefly opened the door. While the police were deciding what to do next, the occupant left the apartment and drove away in a vehicle. The police officers followed him and ultimately conducted a traffic stop to ask him why he slammed the door and to see if he had any marijuana in his vehicle. As they were talking to the driver, the police officers saw a handgun partially concealed in the vehicle. They arrested the driver for carrying a concealed firearm.
The Fourth Amendment and the Florida constitution provide that people have a right to be free from unreasonable searches and seizures conducted by the state. There are thousands of court cases that interpret what exactly this means in the context of the different police encounters. As a general rule, the police in Florida are allowed to go up to anyone and ask questions, even if the police suspect that person committed a crime and are trying to acquire incriminating information. Of course, that person is free to refuse to answer those questions. The police can walk up to a person’s front door (as long as access is not protected by a gate or other privacy barrier) or knock on a driver’s window to ask questions. If the subject chooses to engage the police and answer, the constitutional search and seizure provisions do not apply.
However, if the encounter develops into what is considered a seizure, the police need to establish reasonable suspicion of criminal activity or probable cause or possibly have a search warrant depending on the circumstances. For instance, consider an example where a police officer sees a car stopped somewhere suspicious with the driver inside the vehicle. The officer might suspect something improper or just wonder if the driver is having trouble of some kind. Often, the police officer will suspect that the driver is driving under the influence of alcohol or drugs (DUI). That police officer can approach the vehicle, look into the window and investigate further. The police officer can ask the driver to roll down the window so they can talk. If the driver agrees or voluntarily exits the vehicle, this is considered a lawful and consensual encounter.
What often takes this scenario to the next level is if the driver does not respond for whatever reason or refuses to answer the police officer. Normally, the police officer will then order the driver to turn off the vehicle or roll down the window or step out of the vehicle. The police officer might park his/her vehicle behind the other vehicle preventing it from leaving. The key to whether an encounter escalates into something requiring evidence of criminal activity is whether the subject reasonably feels like he/she is free to disregard the officer and leave. In reality, when a police officer asks or tells anyone to do anything and that person refuses or ignores the officer, the officer is almost never going to let it go. However, under the law, there are certain situations which qualify and certain that do not. The examples I listed earlier in this paragraph are generally examples of commands that change the encounter to a seizure and require at least reasonable suspicion of criminal activity. If the police officer looks into the vehicle, asks questions and the driver ignores the police officer, the officer cannot command the driver to exit the vehicle without a legal basis. At this stage, the police officer must be able to point to some facts suggesting a crime is being committed, which would be difficult to do in the DUI context if the window is up.
Most people have heard of the “black box” or “event data recorder” after airplane crashes. It is a device that records information about the plane that helps investigators determine how and why a crash occurred. What many people may not know is that cars often have black box recorders as well. Most cars manufactured in the last few years come equipped with the black box recorder. The data on these devices can be used to determine the speed of a vehicle, steering and braking information and other data that can also help determine why a motor vehicle crash occurred.
The black box data could be useful to police in investigating certain crimes. For instance, that data could help the police investigate a DUI manslaughter case, a fleeing and eluding case or an aggravated battery with a motor vehicle case. However, the police cannot just go into a person’s vehicle and collect that data. The police might be able to seize a person’s vehicle if it is evidence of a crime. Alternatively, the police might take custody of a vehicle rather than leave it on the side of the road after arresting the driver. In these situations, the police are normally permitted to search the vehicle as part of a legal inventory search- a search of the vehicle to make sure nothing dangerous is in the vehicle and make sure the suspect’s property is inventoried and kept safe to return to the suspect when the case is finished.
The black box data are different. Collecting that data is more complicated than searching the vehicle and removing personal items for safekeeping. The key to whether the search warrant requirement is triggered is whether the suspect has a reasonable expectation of privacy in the area or thing to be searched. Florida courts have held that people have a reasonable expectation of privacy in their vehicles and the interior of their vehicles. Florida courts have also ruled that people have a reasonable expectation of privacy in electronic storage devices such as cell phones, Ipads and computers. A black box recorder falls into both of these categories. As a result, if the police want to obtain the data in these black box recorders that are relevant to a crash that involves criminal activity, the police will either need to get a search warrant for the data or get consent from the owner of the vehicle. Failure to do so will likely result in all of the evidence from the recorder being inadmissible in court.
In Florida and elsewhere, when a suspect is arrested, he/she has a constitutional right to remain silent and consult a lawyer before making any statements or making any important decisions about the case. In fact, for just about every defendant in a criminal case, this is exactly what a suspect or defendant should do. It is exceedingly rare for a person to make a statement to the police at that early stage, with such limited information and without the advice of a criminal defense lawyer, and it doesn’t do anything but hurt the defendant’s case.
As part of this right to remain silent and consult a criminal defense attorney, the police are required to read the Miranda warnings to a suspect who is in custody before any request to speak with him/her about the case. These warnings inform the suspect that he/she has a right to remain silent and a right to a criminal defense lawyer. If the suspect invokes those rights, the police cannot question the suspect about the case.
However, even when a suspect exercises his/her right to remain silent and requests a criminal defense attorney, the police can still ask certain questions about the suspect as part of the arrest and booking process. The police are still permitted to ask biographical and routine booking questions. For example, when the police arrest someone, they fill out reports and enter the suspect’s information into their system. They can ask questions relating to physical characteristics, age, address, date of birth, place of employment and similar identifying characteristics. The police cannot ask questions that are designed to elicit information about the case.
Whether through books or TV shows or movies, most people in Florida have heard the Miranda warnings and understand that the police are supposed to read them to a suspect after he/she has been arrested. It is important that the police inform people of their constitutional rights upon their arrest. Of course, this includes the right to always remain silent when police want to ask questions or take a statement and the right to consult with a lawyer before a suspect makes any statement or makes any decisions about his/her case.
However, the police do not have to read a person the Miranda warnings in every encounter they have with suspects. The general rule is that the police are required to read Miranda warnings before any custodial interrogation. In other words, a suspect has to be in custody to trigger this requirement. Custody is generally defined as a situation where the suspect is not free to leave. Obviously, if a person is being handcuffed and arrested, he/she is in custody. However, it is less clear when the police confront a suspect to ask questions or bring the suspect to the police department to ask questions. The other requirement is that the police are conducting an interrogation. If the police approach a person and the person starts making statements on his/her own, that is obviously not a custodial interrogation that requires Miranda warnings. If a suspect voluntarily goes to the police station and starts talking to the police, that likely is not a custodial interrogation either. However, if any force or involuntary confinement is used and/or it is clear that the suspect cannot just stop and leave, that would be a custodial interrogation.
It is important to note that, whether an encounter with police is a custodial interrogation or obviously a consensual and casual interaction or something in between that is not so clear, a suspect or defendant always has the right to remain silent and request a lawyer before anything critical to the case happens. And in just about every situation, that is exactly what a suspect or defendant should do. Many, many cases get a whole lot worse for suspects and defendants when they make the decision to talk to the police without knowing all of the facts and issues about their case.
In Florida, most DUI (driving under the influence of alcohol or drugs) cases are the result of a police officer claiming to observe a suspect violating some traffic law while driving, after which the officer conducts a traffic stop and DUI investigation. Other times, which occur in the Jacksonville, Florida area from time to time, the police set up a DUI roadblock and check drivers as they pass through the checkpoint. In these cases, the police observe the suspect driving the vehicle, and if they can prove the driver was impaired from alcohol or drugs, the police observe all of the elements necessary to prove a DUI charge ad can move forward with a DUI arrest.
This is important because there is a law in Florida that essentially says the police cannot arrest a person for most misdemeanors unless the police actually observe the suspect commit the misdemeanor crime. Again, this usually is not an issue in DUI cases because most DUI cases result from traffic stops. But, there is a small subset of DUI cases where this can be an issue for a criminal defense lawyer to pursue. For instance, consider a case where a civilian or even a non-state law enforcement official observes a suspect driving while impaired and calls the local police to report it. When the police locates the DUI suspect, the suspect has already parked and exited the vehicle. The police officer might conduct a DUI investigation and determine that the suspect was impaired from alcohol or drugs, but the police officer cannot arrest the suspect for DUI. In this case, someone might have seen the suspect driving while impaired, but the police officer did not. If the police officer did not observe that element of the crime, the police officer cannot arrest the driver for DUI.
There are two exceptions to this rule. Local police officers who have authority to investigate such crimes can relay the required information to another police officer who can make an arrest. For instance, police officer A observes a suspect driving erratically and pulls the suspect over. Police officer B arrives to take over the DUI investigation and police officer A tells officer B what he observed. Officer B finishes the DUI investigation and arrests the driver. Fellow officers are considered interchangeable in this scenario. The other exception involves traffic crashes. A police officer who responds to just about any type of crash that involves an injury and/or any property damage can investigate the case for a potential DUI and make an arrest even if the police officer arrived after the crash and did not observe anyone driving. The state still must prove the DUI suspect was driving or in control of the vehicle, but the police do not need to have observed it for an arrest in these types of DUI cases.
After a person is convicted of a crime in Florida, whether as a result of a guilty or no contest plea or a jury trial, it is up to the judge to determine the defendant’s sentence. Of course, if the criminal defense lawyer and the prosecutor work out a deal as part of a guilty or no contest plea, the judge still has to agree to accept the deal, but judges will normally go along with a deal worked out by the two sides. Minimum mandatory penalties for some crimes in Florida can limit a judge’s discretion in sentencing. However, if a defendant enters a plea without a deal with the state or a person is found guilty at a trial, the judge will usually be the one to decide the defendant’s sentence without any limitations.
The sentence in such cases is usually determined at a sentencing hearing. This is a hearing at which both sides can present witnesses, evidence and arguments to convince the judge to sentence the defendant as they see fit. The parties can present a wide variety of information in aggravation or in mitigation to convince the judge of their position. The judge is permitted to consider many different facts and opinions when determining a defendant’s sentence.
However, some facts are not appropriate for consideration at sentencing. It is not uncommon for a sentencing hearing to take place several weeks, or even months, after a defendant enters a guilty or no contest plea or loses a trial. Events that occur in between can be considered by the judge, for better or worse. Examples of positive developments in between a plea and sentencing might be that the defendant obtained a new job or started a rehabilitation program. On the other hand, if a defendant fails to appear at his/her sentencing hearing, that will almost always result in a higher sentence once the defendant is arrested on a warrant.
In Florida, when a police officer stops a driver and suspects that he/she is driving while impaired from alcohol or drugs, that police officer will go through the normal DUI investigation. That typically includes various questions about what the driver has been doing, where he/she has been and how much he/she has had to drink. It is important for everyone to understand that you have a right to refuse to answer such questions. In fact, it is usually a good idea to give your name, license, registration and insurance card and then request to speak to a lawyer. As most people should know by now, anything else you say can and will be used against you in a DUI case.
The next step in a DUI investigation is normally to ask the driver to exit the vehicle and submit to field sobriety tests. Again, it is usually a bad idea to perform these tests. First and foremost, these are completely subjective tests (i.e. if the police officer says you failed, then you failed). And these subjective tests are being conducted and graded by a person who already believes you are drunk. Also, if there is no video in the police car documenting the tests, your ability to defend your performance in court later on is severely impaired. Even if there is a video, the video will not catch certain critical parts of the testing, For instance, when the police officer conducts the HGN test where he asks you to follow the light with your eyes, he will say you failed, and the video will not be able to disprove that because it will not capture how you did on that particular test.
After the field sobriety tests, or your refusal to perform them, the officer will likely arrest you for DUI. You are taken to the jail and booked. Only after you are in the jail does the officer asks you if you want to blow in the breathalyzer. Given the timing, the first thing you need to understand is that the breathalyzer will not save you from an arrest. You have already been arrested. It is just another tool the police use to try to convict you of DUI. In Florida, when you obtain a driver’s license, you consent to blow into the breathalyzer as part of a lawful DUI investigation. However, you can still refuse that request. If you refuse a breathalyzer test as part of your first DUI, there are two primary repercussions. As long as the DUI arrest is valid, your driver’s license will be suspended for a year (rather than six months if you take the breathalyzer test). Secondly, if your DUI case goes to trial, the state can use the refusal against you in court and argue you refused the breathalzyer because you knew you would fail. Of course, you and your criminal defense lawyer can argue the many other reasons why you rightfully felt like you should not have taken the breathalyzer.