Criminal Procedure

Officers Didn’t Read Me My Miranda Rights!

Published on: May 31, 2024 | by Lasnetski Gihon Law

Everybody has heard of Miranda rights, but few actually understand what they are and what they do. You may be surprised to learn that police officers do not always have to read you your Miranda rights when they are questioning or even arresting you? Sounds crazy, but it’s true.

The name “Miranda” came from the landmark United States Supreme Court case Miranda v. Arizona in 1966. The issue was whether police officers had to advise a person of his or her Constitutional rights before questioning them about a crime. What constitutional rights? The Fifth Amendment to the Constitution provides the constitutional right against self-incrimination. In other words, the government can’t make you tell them anything that may incriminate you. And the person must be told that he or she has the right to consult with an attorney to discuss the Fifth Amendment right. So, out of the Miranda case, came the Miranda rights or warnings that we all have become accustomed to when someone is arrested.

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But Miranda rights only relate to custodial interrogation and the right against self incrimination. So, if you don’t incriminate yourself, no Miranda rights are required. And law enforcement must only advise you of your Miranda rights before interrogating you in a custodial setting. Whether a person is in custody depends on what a reasonable person in the person’s place would believe that they were in custody. So if officers don’t interrogate you or it’s not in a custodial setting, then they don’t have to read you your rights.

Federal Safety Valve: The Supreme Court Dramatically Reduces Eligibility For Sentences Below the Minimum Mandatory in Federal Drug Offenses

Published on: April 3, 2024 | by Lasnetski Gihon Law

In federal criminal courts, when a person is convicted of a drug offense with a minimum mandatory sentence provision, there are only two ways that allow a federal judge to go below that statutory minimum mandatory sentence: a 5K motion filed by the federal prosecutor if the client provides substantial assistance to the government or the safety valve provision of 18 U.S.C. §3553(f). Congress recently broadened the safety valve provision and one particular section has been subjected to intense litigation resulting in varying outcomes from the various circuits.

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If otherwise qualified under different subsections, a person is eligible for the safety valve, and therefore a sentence below a statutory minimum mandatory sentence under §3553(f)(1) if:

The defendant does not have –

What if the State doesn’t give me a speedy trial?

Published on: February 12, 2024 | by Lasnetski Gihon Law

Close-up of the U.S. Constitution Every person charged with a crime in the United States is entitled to a speedy trial. This is a federal constitutional right guaranteed by the Sixth Amendment to the United States Constitution which states, [i]n all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial…” The State of Florida also made this a state constitutional right in Section 16 of the Florida Constitution, which states that in all criminal prosecutions the accused shall, upon demand…shall have the right…to have a speedy and public trial…

The Florida Supreme Court adopted Florida Rule of Criminal Procedure 3.191, which provides that every person charged with a crime be brought to trial on a misdemeanor within 90 days of arrest on a misdemeanor and within 175 days of arrest on a felony. The Rule states that the time period commences when the person is taken into custody, which is defined as “when the person is arrested as a result of the conduct or criminal episode that gave rise to the crime charged;” There are exceptions to these timeframes and the most common exception is when the person charged waives their right to a speedy trial. There are valid reasons to waive that right. Basically, a person is not entitled to have their cake and eat it too. In other words, a person charged with a crime is going to need time to investigate the case, to potentially take depositions, to conduct legal research, to file motions and have motion hearings, and to otherwise conduct pretrial negotiations and/or litigation. So, if a person demands a speedy trial, that person is necessarily not going to have additional time to prepare a defense. So, in most cases, a person charged is going to move to continue the case to allow for preparation. However, what happens when the time has expired before the person has waived his or her right to a speedy trial?

In State v. Williams, Ms. Williams was arrested on October 8, 1999. The State filed formal charges on May 3, 2000, which was 206 days after her arrest. Ms. Williams filed a motion for discharge alleging that the State failed to bring her to trial within the time allowed by Florida Rule of Criminal Procedure 3.191. Under subsection (p)(3), the defendant can file a notice of expiration of speedy trial and then the trial court must conduct a hearing within five days and set the case for trial within 10 days. This is referred to as the “recapture period.” So, the trial judge treated the motion for discharge as a notice of expiration of speedy trial and held a hearing and scheduled the case for trial within 10 days. Ms. Williams objected, arguing that she should have been discharged because the time frame had expired.

When Can a Police Officer Make an Arrest on a Misdemeanor Without a Warrant in Florida?

Published on: January 22, 2024 | by Lasnetski Gihon Law

The Fourth Amendment to the United States Constitution protects citizens from unreasonable searches and seizures. Police officers can’t simply walk up to any citizen and detain or arrest that person. There must be reasonable suspicion or probable cause that the person has, is, or is committing a crime in order to detain or arrest them.

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Typically, if a police officer wants to make an arrest, they must seek an arrest warrant. In order to obtain an arrest warrant, the officer must establish to a judge that there is probable cause that a crime occurred and that the defendant committed the crime. The judge will then issue an arrest warrant if the judge determines there is probable cause exists.

However, a police officer does not always have to obtain an arrest warrant in order to make an arrest. There are exceptions to the arrest warrant requirement. Florida Statute §901.15 lays out when an officer can make an arrest without an arrest warrant. There are many exceptions to the arrest warrant requirement. For example, an officer doesn’t need a warrant to arrest a person for driving under the influence. The officer can simply make the arrest once observing all of the elements of the offense.

Florida 5th DCA Holds That Officers Do Not Need to Obtain Valid Consent Before Requiring Field Sobriety Exercises Where There is Reasonable Suspicion of DUI

Published on: December 19, 2023 | by Lasnetski Gihon Law

A major issue in DUI cases has not been fully fleshed out and has caused a lot of confusion among practicing criminal defense attorneys and judges. When a driver is pulled over and the officer has reasonable suspicion that the driver is under the influence of alcoholic beverages or drugs, does that officer have to obtain voluntary consent before requesting that the driver submit to field sobriety exercises?

The leading case on this issue comes out of the Second District Court of Appeals. In State v. Liefert, 247 So.2d 18 (Fla. 2d DCA 1971), the Second DCA held that when an officer has sufficient cause to believe a driver committed a DUI, the driver’s consent to taking field sobriety exercises is immaterial and the officer can require that the driver submit to them, or the refusal can be used against the driver as evidence of consciousness of guilt.

dui-law-300x200 In Liefert, an officer observed Mr. Liefert weaving across two lanes of traffic. The officer pulled Mr. Liefert over and noticed an odor of alcoholic beverage. The officer asked Mr. Liefert if he would take some physical sobriety tests and Mr. Liefert agreed. Mr. Liefert was arrested, based in part on the results of the sobriety tests and Mr. Liefert filed a motion to suppress all evidence obtained as The trial court granted the motion finding that the officer did not advise Mr. Liefert of a right to refuse to take the tests.

How Should I Handle Police Questioning When Stopped and Investigated Based on the “Odor of Marijuana”?

Published on: October 20, 2020 | by Lasnetski Gihon Law

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.

Police Illegally Arrest and Search Suspect for Violating County Ordinance in Florida

Published on: June 6, 2020 | by Lasnetski Gihon Law

Most of the criminal laws people know about are laws that are promulgated by state legislatures or Congress. However, cities and counties can also enact laws that make certain conduct illegal. But not all of these city or county laws allow the police to arrest someone for a violation. Apparently, not all police officers know that. In a case south of Jacksonville, Florida, the suspect was sitting on a park bench late at night. Apparently, the county had an ordinance making it a violation for a person to engage in any activity in contradiction to a posted sign. The park had a sign saying the park was closed after dark. So, the police officers arrested the suspect for being in the park after dark and searched his backpack. They found a small amount of fentanyl in his backpack, and he was later charged with possession of a controlled substance.

Normally, when the police make a valid arrest, they are permitted to search the person and his immediate belongings. This is a search incident to an arrest, and the idea is that police are permitted to search a person and what he is carrying after an arrest because the police need to know if someone they are taking into custody has anything dangerous or illegal on him. This is a standard search that is difficult to challenge unless police use it as an excuse to search things away from and not connected to the suspect.

However, the problem here was the arrest itself. There was a county ordinance and the suspect was in violation of it by being in the park after dark, but the ordinance only allowed for a fine for a violation. Nothing in the ordinance allowed the police to arrest someone for any more than holding them while they wrote the ticket. As a result, the arrest for a county ordinance that did not authorize arrests was illegal. Since the arrest was illegal, the search of the backpack incident to the arrest was also illegal. Searches incident to a lawful arrest are fine, if limited in scope, but searches incident to an arrest are illegal if the arrest itself was not legal.

Expunging a Criminal Record in Florida Does Not Necessarily Eliminate All Records, Such as DNA Records

Published on: May 28, 2020 | by Lasnetski Gihon Law

Florida law allows a person to seal or expunge a criminal case under certain, limited circumstances. This is a great option for people who are eligible as a criminal record of any kind can be a serious detriment to future job prospects. For an expunction, a person is eligible if the case the person wants to expunge was either dropped, never filed or resulted in a verdict of not guilty and that person has never been convicted of a crime before and has never had a case sealed or expunged in Florida before. For a sealing, the same rules apply except the person is still eligible to get a criminal case sealed even if he/she pled guilty or no contest as long as the judge withheld adjudication on each count. Also, certain, more serious crimes are not eligible to be sealed. If anyone has a prior criminal case on his/her record and thinks he/she might be eligible to have it sealed or expunged, it is almost always worth looking into as it is generally much better to go into a job search with no criminal record or less of a criminal record. Lasnetski Gihon Law will discuss the matter with you and look into your background to see if you are eligible for a sealing or expunction.

While a sealing or expunction in Florida is a great way to eliminate or conceal a prior criminal case from employers running the standard record search, neither process completely eliminates all records from everyone. If the person who had his/her record sealed or expunged gets arrested again, the prosecutor will see the prior case(s), and the judge will know about the prior case for bond and sentencing purposes, if applicable. Also, it is unclear that a sealing or expunction of a criminal case eliminates the state’s ability to get certain records from the prior case, such as DNA.

In a recent murder case near Jacksonville, Florida, a woman was sexually assaulted and murdered by a suspect who fled the scene. The police found an item at the scene with what they suspected was the offender’s DNA. The police ran the DNA found at the crime scene through their system and found a likely match with the defendant. After obtaining other evidence, the defendant was arrested and charged. The criminal defense lawyer filed a motion to suppress the DNA evidence because the police matched the crime scene DNA with the defendant’s DNA that was obtained as a result of a prior case that had been expunged. The criminal defense attorney argued that the state illegally obtained the defendant’s DNA because the prior expunction order required the FDLE to expunge all of its records relating to the case, including the DNA.

When Can the Court Order Restitution in Florida Criminal Cases?

Published on: March 25, 2020 | by Lasnetski Gihon Law

In Florida criminal cases, if and when a defendant either pleads guilty or no contest or is convicted at a trial, the court will normally order restitution as part of the defendant’s sentence if there is a victim who lost money or property as a result of the crime. This is most common in fraud and theft cases where the defendant stole money or something else of value from the victim. It is also common in cases where the victim’s property was damaged or the victim was injured as a result of the crime and had to pay for medical bills or to fix or replace property.

Normally, the prosecutor will get with the victim and find out the amount of restitution. The prosecutor and criminal defense attorney will go over the amount and the proof of loss and come to an agreement as to the amount of restitution. If they cannot agree, the court will hold a hearing to determine the amount of restitution that is owed. Then, the defendant can either pay it prior to or at the time of the resolution of the case or the judge will sentence the defendant to a period of probation, either instead of jail or prison or after jail or prison, and the defendant will pay the restitution as a condition of probation.

However, there are times when the state does not know the amount of the restitution when the defendant pleads guilty or no contest. This happens because the prosecutor has not been able to get in touch with the victim or the amount has otherwise not been determined yet for some reason. In this case, the state will normally ask the judge to reserve a period of time to determine the restitution amount. When a defendant pleads guilty or no contest and gets sentenced, the sentence will not change, for better or worse, absent other circumstances in the future. However, if the judge reserves right to determine restitution at a later date, the judge can add a restitution amount at that later time. Florida law indicates that the judge has 60 days for which restitution can be reserved. Some criminal defense lawyers interpret this to mean that if the state does not figure out the restitution amount and the judge does not order that restitution amount within 60 days from the conviction, the state can no longer seek restitution. However, the case law rejects that argument. As long as the judge reserves the issue of restitution within 60 days of the sentence, the state can come back and ask the judge to order the restitution amount after that 60 days has elapsed. Normally, if the state does not have the amount at the sentencing hearing or immediately thereafter, they are never getting it. But, sometimes, the prosecutor is diligent and comes up with a figure later. As long as restitution was reserved within 60 days of the plea and sentence, the state can ask the judge to order restitution beyond that 60 day period.

Can the Police in Florida Get Blood to Test for Alcohol in a DUI Case Where the Driver is Unconscious?

Published on: February 7, 2020 | by Lasnetski Gihon Law

In Florida, most DUI cases involve some alleged traffic violation followed by a DUI investigation and an arrest. If the police officer thinks the driver is impaired from drugs or alcohol, and usually the officer makes that decision early and quickly, that officer is going to make the arrest. Everything else he does is designed to gather evidence to support the decision he has already made. Some people think the police officer will offer a breathalyzer test before an arrest to determine if an arrest for DUI is, in fact, appropriate. But that is not how it works. Essentially, there is a traffic stop, the police officer decides the driver is DUI, collects evidence such as field sobriety test results, makes the arrest, takes the driver to jail, books the driver into the jail and only then requests the breathalyzer test. So, the breathalyzer test is not something a driver can do to avoid an arrest. The arrest is a done deal at that point. It is just another tool the police use to try to bolster their DUI case.

Most DUI cases involve a request for a breathalyzer test at the jail. However, there are situations where a breathalyzer test is not feasible, for instance, if the defendant was injured in an accident and had to be taken to the hospital or is otherwise unable to provide a breath sample. In that situation, the police might have the option of getting the driver’s blood to test for alcohol content. However, there are legal limitations to getting blood in DUI cases, and the police cannot always do it just because a breath test would be inconvenient.

In a case south of Jacksonville, Florida, a driver was injured in a single vehicle accident. A police officer responded and smelled alcohol coming from the vehicle. The driver was unconscious and taken to the hospital. The driver was not able to provide a blood sample so the police officer asked medical personnel to obtain a blood sample to be tested for alcohol content. The police officer did not seek a search warrant before getting the blood sample. After the blood tested well over the legal limit in Florida, the driver was arrested for DUI with injury.