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In Florida and elsewhere, people have a constitutional right to privacy, and this protection is greatest in one’s home. As a result, the police generally cannot search a person’s residence without consent from someone with authorization or a valid search warrant. If the police do get a valid search warrant signed by a judge, that does not give them free rein to search anything and everything belonging to the suspect. The search is limited to what is reasonable and the area identified in the search warrant.

In a recent drug possession case south of Jacksonville, Florida, the police obtained evidence that the defendant had illegal drugs in his home. The police went to a judge and obtained a search warrant for the residence. The address of the residence was listed on the search warrant, and it was described as a single story residence. The search warrant authorized the police to search the residence, the curtilage of the residence (the area surrounding the home), any vehicles on the premises and any people at the premises. That is fairly common for search warrants. When the police arrived to the property, the saw an RV on the property and searched it. They found illegal drugs inside.

The criminal defense lawyer filed a motion to suppress the evidence found in the RV arguing that police did not have authority to search the RV based on a search warrant of the permanent residence that did not mention the RV. The state pointed out that a search warrant of a residence and its curtilage often allows police to search enclosed areas around the house, such as a shed or a vehicle on the property. However, search warrants are limited to the place described in the search warrant. Police officers are not authorized to search separate dwelling units on the property that are not listed in the search warrant. So, the question becomes whether the RV is apparently being used as a separate dwelling. The court looked at where it was located, who owned it, whether it was affixed to the ground, whether there was a utility hookup, whether it was occupied and other factors. If it was reasonable to believe the RV was being used as a separate residence, the police could not search it since it was not mentioned in the search warrant. However, if it appeared reasonable to believe the RV was being used as a vehicle and was on the property mentioned in the search warrant, then the police probably would have been authorized to search it. In this case, the evidence indicated the RV was a residence so the search was unlawful, and the evidence found in the RV was suppressed.

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With some exceptions, police officers are generally only allowed to investigate crimes and make arrests within their jurisdictions. A Jacksonville Sheriff’s Office employee isn’t normally allowed to drive into St. John’s County and pull people over who he suspects of driving under the influence of alcohol or drugs. Additionally, off-duty police officers are not normally allowed to investigate cases or make arrests.

However, in a case south of Jacksonville, Florida, a police officer ended his shift and was driving to his house, which was in a different county. Another vehicle was swerving and almost hit the officer forcing him to leave the roadway. The officer turned around and started following the suspect. The police officer observed him swerving all over the road. The police officer pulled the suspect over to investigate for DUI. He called a local police officer who took over the investigation and did ultimately arrest the suspect for DUI.

The criminal defense lawyer filed a motion to suppress the evidence of DUI arguing that the initial police officer illegally pulled the defendant over since he was off-duty and out of his jurisdiction. The state argued that the police officer made a lawful citizen’s arrest. In other words, the state treated the case as if the police officer was a private citizen. Citizens are allowed to make arrests in Florida if they witness a person commit a felony crime or the crime of breach of the peace.

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In Florida, the police usually attempt to substantial a DUI (driving under the influence of alcohol or drugs) arrest by asking the suspect to take a breathalyzer test. This is a test normally administered at the jail only after the suspect has been arrested. The purpose of the test is never to determine if the suspect is impaired; it is always to secure more evidence against the suspect. In other words, if a DUI suspect agrees to submit to the breathalyzer test at the jail and blows under the Florida legal limit of 0.08, the police will not let that suspect go. On the other hand, if the suspect blows above 0.08, the state will always attempt to use that evidence against the suspect in court.

The police have other tests to try to create evidence. Sometimes, under certain circumstances, the police can take blood that is later tested for alcohol or drug content. There are specific rules that determine when a blood test is appropriate. The police can also request a urine test in certain situations. In a case just south of Jacksonville, Florida, after the suspect was arrested for DUI, the police officer asked if the suspect would submit to a breath or urine test. The suspect agreed to give the urine sample. The urine sample was given in a fairly private setting and under the supervision of a female police officer.

The criminal defense lawyer filed a motion to suppress the urine test results arguing that the police needed a search warrant to obtain a urine sample for a standard DUI case. The criminal defense attorney argued that giving a urine sample is an unnecessary invasion of a person’s privacy. The court noted that, unlike blood samples, which require a needle and puncture of the skin, giving a urine sample is a fairly non-intrusive process. On the other hand, a urine sample can be tested for a wide range of substances while breath can only be used to test alcohol content. The court agreed that giving a urine sample implicates a person’s right to privacy, however the state’s interest in obtaining evidence, whether that involved alcohol consumption or the use of drugs, outweighed those privacy interests. The court held that the police could request the urine sample without a search warrant since they had probable cause to arrest the suspect for DUI and allowed the state to use the urine test results against the defendant in court.

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In Florida, a person or business may not engage in the money services business unless the person or business is licensed or exempt from being licensed by the state of Florida. A violation of this law involving more than $300 is a felony crime. A money services business is defined by Florida statutes as a person or business that acts as a payment instrument seller. A payment instrument is a check, money order, electronic instrument or similar instruments to exchange tor goods and services. Basically, it is anything of monetary value.

In a case south of Jacksonville, Florida, the police identified a person who would buy and sell bitcoin for cash. Presumably, the police targeted this person because they believed he would accept stolen credit cards and other forms of illicit payment in exchange for bitcoin. Bitcoin is an anonymous form of currency so law enforcement may be concerned about people who transact business with this digital currency. A police officer made a few undercover purchases of bitcoin from the subject for cash. They subsequently arrested him because he was not licensed to do business as a money transmitter. Clearly, someone cashing checks or changing foreign currency for US currency would fit within the definition of a money transmitter and need a state license.  In this case, the criminal defense attorney argued the defendant was not subject to this law and did not need to obtain a money transmitter license because bitcoin did not fall under the definition of a payment instrument. Bitcoin was not invented when the Florida money transmitter statute was created so the statute could not have contemplated the inclusion of bitcoin.

Bitcoin is fairly complicated, but it can be described as a system that allows payments to be made through a decentralized process that does not involve a bank. It is a digital currency that is produced electronically by computers. All bitcoin transactions are recorded on a ledger, and each block in this chain of transactions is encrypted. Bitcoin can be stored or exchanged on this ledger that is completely open so all transactions can be verified. So, it is certainly not money or currency in the traditional sense. However, the court did not limit its analysis to whether this digital currency was “money”. The court looked at the fact that bitcoin can be exchanged like money and had monetary value.  In fact, there are many businesses who accept bitcoin, although not as many as before when bitcoin had much higher value. While the criminal defense lawyer wanted the court to focus on the fact that bitcoin does not resemble actual money, perhaps making an argument about the tangible nature of money, the fact that bitcoin can be and is used to pay for goods and services and a market exists to exchange bitcoin for traditional currency doomed that argument.

 

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In Florida, as in other states, police are generally not permitted to enter a person’s property with a valid search warrant or explicit consent from the owner or resident of the property.  There are limited exceptions that do permit the police to come into a person’s home without a search warrant or consent.  Exigent circumstances can be an exception to the general rule if the police have specific evidence of an emergency situation that requires immediate police attention, and it is not feasible to take time to get a search warrant or consent. For instance, if the police receive a legitimate call of shots fired inside a house and show up hear indications of a fight or an injured party, they would likely be permitted to enter the house to address that issue. However, these exceptional searches are limited in time and scope.  The police are only permitted to enter the home for the purpose of investigating and handling the emergency situation. They are not allowed to roam around the property searching for things unrelated to the emergency. On the other hand, if the police see evidence in plain view as they deal with the emergency situation (i.e. illegal drugs out in the open), they are not required to ignore that. In those cases, the police would normally be required to obtain a search warrant based on the evidence they observed while in the home addressing the emergency.

What constitutes valid exigent circumstances depends on the particular case. In an animal cruelty case just south of Jacksonville, Florida, the police received a call about a suspect beating his dog. When the police arrived, they saw the suspect in the back yard and heard what sounded like strikes against someone or some thing. The suspect admitted to hitting his dog but said he did it because the dog bit him. The suspect refused to allow the police inside, but they went in anyway. The police found that the dog was dead and evidence the dog had been abused. The suspect was charged with felony animal cruelty.

His criminal defense lawyer filed a motion to suppress evidence of the dog, other evidence found in the house and the defendant’s statements because the police did not have a right to enter his home without a search warrant or consent. He argued the medical emergency exception to the general rule did not apply to animals. The court disagreed. In Florida, a medical emergency involving an animal is sufficient to allow the police to enter a home under exigent circumstances if the police have enough evidence to establish an immediate need to check on the animal.  Because the police had a right to check on the dog, once they saw the dog was dead and the suspect admitting to killing the dog, they had sufficient, admissible evidence for an animal cruelty case.

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In Florida, the crime of DUI means that a person cannot operate a motor vehicle while impaired from alcohol or drugs.  It does not mean a person cannot drink and then drive.  Of course, to be safe, it is always best to avoid driving after consuming any alcohol.  However, if a person has a couple of drinks and is not impaired, it is not illegal to drive in Florida.  The crime is not drinking and driving; the crime is drinking while impaired from alcohol or drugs to the extent one’s normal faculties are compromised. The problem, of course, is that police officers are the ones who determine whether a person is guilty of DUI at the outset.  Police officers will often draw conclusions based on a quick initial impression and then view everything that happens next in light of the conclusion they have already made.  This is one reason why every DUI report we have ever read seems to have the same “observations” from the police officer- odor of alcohol, slurred speech, bloodshot, watery eyes and similar descriptions. People need to understand that a DUI investigation is completely subjective. If the police officer thinks you are impaired from alcohol, everything he/she does next is designed to acquire subjective evidence to support the decision he/she has already made, which is to arrest you for DUI. And DUI investigations are completely subjective. The judge of field sobriety tests and your appearance and demeanor is a police officer who, in almost every case, has already decided you are impaired, which is why he/she asked you to take the tests to begin with.

Despite that, it remains true that merely drinking and driving is not illegal. You might need to get to a judge or even an appellate court before this fact is recognized, if at all, but police officers and the state are required to prove more than mere drinking and driving. In a recent DUI case south of Jacksonville, Florida, a driver was stopped for a routine traffic violation, and the police officer suspected he was driving while impaired from alcohol. The police officer documented the standard observations- odor of alcohol, slurred speech, watery eyes. The driver also admitted to having one drink. Based on that, the police officer had the driver exit the vehicle and perform field sobriety tests.

The criminal defense lawyer filed a motion to suppress all of the evidence that was obtained after the driver was ordered to exit her vehicle. Police officers cannot detain a driver and conduct a DUI investigation without evidence of impairment. In this case, there was nothing disturbing about her driving that would indicate impairment. The odor of alcohol only provided proof that the driver had consumed an alcoholic beverage(s), not that she was drunk. The bloodshot eyes and slurred speech are not sufficient to establish impairment, and it is probably relevant that all judges know police officers put that in every DUI report.

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In a murder case south of Jacksonville, Florida, the police identified a suspect and learned that he had multiple cell phones. They tried to use this cell phone information to determine the location of the defendant at the time of the murder. When people use their cell phones, the phones communicate with a tower.  Cell phone companies record this cell site location information on a mapping program that shows the locations of those towers. If the police are able to obtain this cell site information from cell phone companies, they can determine an approximate location of a person at a certain time based on cell phone usage. In this murder case, the police did obtain this cell phone information from the cell phone provider without a search warrant, and discovered that the suspect was near the site of the murder at the time. With this information and other evidence, the defendant was arrested for murder.

The criminal defense attorney filed a motion to suppress the cell site information because the police did not obtain a search warrant to get it. In 2018, the Supreme Court of the United States addressed this issue and ruled that this historical cell site information is protected by the Fourth Amendment right to privacy. In other words, the police cannot just obtain this information without probable cause and a search warrant. Because they did so, the murder case was reversed.  That opinion noted that cell phone providers maintain this information on all cell phone users. If the police did not need a search warrant to obtain this information, the police would basically be permitted to run location surveillance on just about everyone with a simple request. People increasingly rely on portable electronic devices for work and many other aspects of life. Doing so and the fact that providers of these devices record information about the user does not mean the user relinquishes his/her private data to the government without oversight.

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In Florida, most DUI cases (driving under the influence of alcohol or drugs) cases start after a police officer pulls a driver over for a routine traffic violation. The police officer then approaches the driver, claims to observe signs of intoxication and then conducts a DUI investigation. If the police officer subjectively believes the driver is impaired from alcohol, or just does not like the driver’s responses or level of cooperation, the police officer will likely arrest that driver for DUI.

One traffic violation that gets people pulled over is having a license plate that is fully or partially obscured. Every vehicle in Florida is supposed to have a license plate, and the unique numbers and letters on that license plate are the numbers and letters that identify specific vehicles and their owners. Police officers use these numbers and letters to identify owners to check on suspended licenses, outstanding warrants, stolen vehicles and other information. If a person has a license plate where those numbers and letters are even partially concealed, the police officer may not be able to run the license plate in his/her system. This raises suspicion and is against the traffic laws of Florida. Whether a part of the numbers and letters are concealed or the license tag is faded or covered with some protector that makes it too hard to read, a police officer can pull a driver over for this and initiate a DUI or other criminal investigation if he/she observes evidence of a particular crime. Or, the police officer can just give the driver a traffic ticket for the problematic license plate.

The key information on license plates in Florida is the unique numbers and letters. However, license plates in Florida have other lettering as well. Some have the MyFlorida.com website on there or convey some message if it is a specialty license plate. Some have the name of the county. These numbers and/or letters have no value to a police officer trying to identify registration information on the vehicle. If the letters “ars” on a Jacksonville Jaguars specialty license plate are concealed, that obviously has no relevance to anything the police need to do their jobs and is not suspicious in any way.

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In Florida, most DUI cases (driving under the influence of alcohol) are the result of traffic stops and then subjective DUI investigations and then requests for the driver to submit to a breathalyzer test after he/she has been arrested.  The police cannot generally request a blood sample from a person, or force a suspect to give a blood sample, unless the Florida statute authorizes it or there are emergency circumstances. There are DUI cases in Florida where a police officer can get a DUI suspect’s blood to be sent to the crime lab and tested for alcohol content. There is a Florida statute that allows the police to obtain a blood sample from a DUI suspect in certain circumstances.

If a driver has been involved in an accident and there is probable cause to believe the driver was under the influence of alcohol and that driver has caused a serious injury or death, the police can then require the driver to provide a blood sample for testing. There is some ambiguity over what a serious injury is and there is often conflict over whether there is probable cause to believe the driver was under the influence of alcohol.  For instance, just because someone involved in the crash was taken to the hospital does not mean there was a serious injury.  Likewise, just because the police smell alcohol on a driver does not automatically mean there is probable cause to believe the driver is under the influence of alcohol.

But there is also another factor that gets overlooked in some DUI cases. The police must have evidence that the driver whose blood they are seeking caused the crashed that resulted in the serious injury or death. Police often come to these accidents after the fact. Therefore, they cannot necessarily rely on their observations of the crash to determine the cause. They must perform some level investigation to make some credible determination of causation of the crash and the resulting injury or death. Without that, the police cannot order a DUI suspect to give blood. This does not mean a driver cannot be charged with DUI. It just means the police cannot obtain the driver’s blood, and if the police do so without establishing any causation, the criminal defense lawyer can get the evidence of the blood alcohol test thrown out of court.

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In Florida, it is illegal for a person who has been convicted of a felony crime in any state to carry a concealed weapon.  There is a Florida criminal statute that addresses possessing a firearm and carrying a weapon, but they prohibit different things.  The law says that person who has previously been convicted of a felony may not possess a firearm.  The same statute says a person who has been convicted of a felony may not carry a concealed weapon.  The key difference, of course, is with the words carry and possess.  Regarding firearms, they may not be possessed.  Of course, if a convicted felon is carrying a firearm, he is also possessing it. However, the concept of possession is much broader than what a person is carrying.  A person can constructively possess things that are miles away.  For instance, you may be in California but also be in possession of a firearm in your house in Florida if the state can prove you knew the firearm was there and had sufficient control over its existence there. Proximity to a firearm may be sufficient to prove possession.  More than one person can be in possession of the same firearm. Many factors may be sufficient for the state to prove a person is in possession of a firearm, and if that person is a convicted felon, the penalty for such an offense can be severe.

Carrying a weapon is much more narrow. A convicted felon may not carry a concealed weapon. Carrying is generally interpreted as one would expect. As a result, if the police find a knife in a driver’s glove compartment of his car, the state may be able to prove the driver is in possession of the knife, but he is not carrying it, and therefore would not be in violation of this criminal statute. However, while the action required for criminal liability is more narrow, the definition of a weapon is broad. A weapon can include any potentially deadly weapon that can be concealed from another person. For instance, brass knuckles can cause a lot of damage, but they are generally not a weapon that is used to cause death. However, they are specifically listed in the statute as a potentially deadly weapon that a convicted felon cannot carry while concealed.

In conclusion, no person who has been convicted of a felony in any state may carry or possess a firearm. Also, that person may not carry any concealed weapon that has the potential to cause a deadly injury. That person may carry a potentially deadly weapon that is not a firearm openly so that it is not concealed.  However, it is still dangerous for a convicted felon to carry a deadly weapon that is not a firearm openly because if someone reports it as concealed and/or the police officer believes the weapon is concealed, the suspect may be facing a felony charge that is a credibility contest where a jury would know he or she is a convicted felon.