Articles Posted in Criminal Procedure

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When the police in Jacksonville, Florida and other cities throughout the country find what they suspect to be illegal drugs, whether it is marijuana, cocaine, GHB or the many other narcotics, they will often use what is referred to as a field test kit to quickly test whether the substance is the drug they think it is. These tests are called field tests because they can be performed “out in the field” presumably allowing the police officer to determine whether a substance is an illegal drug without having to bring the substance back to the lab. When field tests results are positive, the police use those results as a basis for further searches and seizures, arrests and as evidence in a criminal case to obtain a conviction.

The problem is that these field tests are significantly flawed according to many articles and studies. A recent report issued by a forensic expert and a former scientist for the FBI found that the field tests commonly used by police give false positives more often than not when testing non-narcotic substances. For instance, they administered the field tests on non-marijuana substances, such as oregano, and found that the field tests resulted in false positives approximately 70% of the time. The field tests were similarly inaccurate when testing non-cocaine substances.

Police use field tests for a variety of purposes, i.e. to obtain search warrants, to search vehicles and homes, to seize evidence, to charge people with drug crimes and as evidence in a criminal trial. The United States Supreme Court has prohibited the use of inaccurate tests to prosecute someone for a drug crime, or any other crime, for that matter. These reports call into question the Constitutionality of using drug field test kit results against any defendant charged with a drug crime in a criminal case.

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If you have been arrested and charged with a crime in Jacksonville, Duval County, Florida and entered a plea of guilty or no contest to the charge, there may be a way to withdraw that plea and proceed with your defense to the criminal charge. After a defendant in a criminal case has been sentenced for the crime, the judge must let the defendant withdraw the plea if there is good cause, and the judge has discretion to allow a defendant to withdraw the plea if good cause cannot be shown

If a criminal defendant has already been sentenced for the crime, he/she still may be allowed to withdraw the guilty or no contest plea. After the sentence has been entered, the defendant must show that the plea resulted in a “manifest injustice” and that the defendant would not have entered the guilty or no contest plea absent the manifest injustice. In order for a plea of guilty or no contest to a criminal charge to be valid, the defendant must enter the plea freely, voluntarily, knowingly and intelligently. If some fact or circumstance prevented the defendant from entering such a plea, he/she may have right to withdraw that plea. Examples of valid reasons to withdraw a plea after sentencing include: the plea was not voluntary, the plea violated a plea agreement with the prosecutor or there was a legal error with the sentence.

Another circumstance where a defendant who pleads guilty or no contest to a criminal charge may be able to withdraw that plea is where he/she was not fully advised of his/her rights and defenses by the criminal defense lawyer. For instance, where the facts of the criminal case suggest that the defendant had a valid defense such as self-defense or duress and the defendant entered a guilty plea without knowing that he/she had a right to assert that defense, that defendant may be able to withdraw the plea even after he/she has been sentenced. It may be a manifest injustice for that defendant to plead guilty to a crime when he/she had a legitimate defense that would have exonerated the defendant.

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Most people are familiar with Miranda warnings which warn a suspect that, among other things, he/she has a right to remain silent and a right to an attorney before the police ask him/her questions about suspected criminal activity. If the police are required to give those Miranda warnings and do not and then ask questions of a suspect, the suspect’s answers will likely be inadmissible at the criminal trial. However, it is not always clear when the police are required to give Miranda warnings. For instance, are the police required to give the Miranda warnings to a suspect during a routine traffic stop before the officer asks the suspect questions about a possible crime? It depends on the circumstances.

For instance, consider a situation that occurred near Jacksonville, Florida that involved two people racing their vehicles, which is a misdemeanor crime in Florida. A police officer observed the race and pulled both vehicles over. He questioned both drivers, and they both admitted to racing. Both drivers were then given notices to appear in court to answer to criminal charges for racing. The police officer did not give the Miranda warnings to the drivers before asking them questions about the suspected racing crime.

The criminal defense lawyers tried to have those statements thrown out of court because the defendants were not given their Miranda warnings before being asked about the racing. The criminal defense lawyers were not successful. Whether a police officer needs to give Miranda warnings before asking investigative questions of a suspect depends on the nature of the encounter between the police officer and suspect. If it reasonably appears to the suspect that he/she is in custody or is under such pressure that his/her right to remain silent seems compromised, the police officer must give Miranda warnings before questioning the suspect about a crime. However, this is a fairly gray area. Some of the factors that determine whether a suspect is “in custody” are: the length of time of the questioning, the number of police officers involved in the encounter, whether the suspect is handcuffed, placed in the police car or otherwise moved to a different location and whether the suspect was searched. If some of these factors are present, the defendant likely has a good argument that he/she should have been given Miranda warnings prior to questioning and any answers he gave about any criminal activity are inadmissible in court. If, as in the racing case referenced above, the police encounter is more consistent with a normal traffic stop that is fairly brief and involves only a few questions while the suspect has not been constrained in any way, there is a good possibility that any answers he/she gives to police questioning could be used against him/her in court even if no Miranda warnings were given.

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Most people in Jacksonville and throughout Florida know that it is against the law to drive a vehicle without wearing a seat belt. A violation of this law typically results in a traffic ticket and a fine. It is also fairly common knowledge that many criminal investigations and arrests are initiated after a Jacksonville police officer pulls a car over for a traffic violation and then suspects that a crime is being committed by the driver such as a DUI (aka driving under the influence or DWI) or some type of drug possession.

However, what is not commonly known in Jacksonville and throughout Florida is that while it is illegal to drive without wearing the seat belt, a police officer may not pull a driver over for that reason alone. A seat belt violation is referred to as a secondary offense, which means that a police officer may only give a driver a ticket for that offense after the officer has stopped the driver for a different, primary offense, such as speeding or careless driving. As a result, under the current law, the fact that a driver is not wearing his/her seat belt cannot be used as a basis to pull a driver over and initiate a more serious criminal investigation into a crime such as a DUI or drug possession.

Florida lawmakers are proposing to change this law to make a seat belt violation a primary offense. If they are successful, police officers will have the authority to pull drivers who they have reason to believe are not wearing their seat belts. This would hopefully lead to fewer injuries and deaths resulting from accidents but would also likely lead to more DUI and drug arrests.

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Consider a scenario where a Jacksonville police officer suspects a person is involved with illegal drugs (such as marijuana, cocaine, heroin, ecstasy or methamphetamine) and enlists the help of a confidential informant (aka a CI) to set up a drug deal with that person. For instance, the Jacksonville police officer may ask the CI to ask the suspect to deliver a container with drugs to another person who happens to be an undercover Jacksonville Sheriff’s Office officer. The police officer may encourage the CI to do this by offering money or a good deal on criminal charges the CI is currently facing. So, the CI approaches the suspect and tells him that the CI will give the suspect some money if the suspect takes the container, delivers it to another person and returns with the money the other person gives him. When the suspect delivers the container, he is arrested by the undercover police officer.

The suspect is then charged with a drug possession and/or distribution crime. At the trial, the suspect’s criminal defense lawyer wants to know who this CI is so the CI can be questioned about the suspect’s role in this incident. In Florida, does the State have to reveal the identity of the CI to the criminal defense attorney?

Normally, in a criminal prosecution in Florida, the State has a limited right to withhold the identity of a CI. Of course, if the State intended to call the CI as a witness at the trial, the State would have to alert the defense to that fact and give the defense the information identifying the CI. But assuming the State does not intend to call the CI as a witness at trial because the State feels they can prove their case with the testimony of the undercover officer alone, the criminal defense lawyer could still force the State to reveal the identity of the CI if he/she can establish that the CI is relevant and helpful to the client’s defense. For instance, in this case, the CI may be helpful to establish two possible defenses. The first would be the defense of entrapment which is further discussed here. The second defense would be that the suspect did not know that drugs were in the container he delivered. The testimony of the CI could be relevant and helpful for either defense. If so, the defense may be successful in learning the identity of the CI and using him/her as a witness for the defense at trial.

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Where a company employee commits a federal crime while acting in the course and scope of his/her job duties and acts with the intent to benefit the company, the company will likely be criminally liable for the employee’s actions along with that employee. This is called vicarious liability, where one person’s or party’s criminal act confers liability upon a second, related person or party.

The standard for vicarious criminal liability in the federal criminal system is quite low. Basically, where any employee commits a criminal act while working pursuant to his/her job duties and the criminal act was done to benefit the company, the company will also be criminally responsible no matter where the employee fits on the company hierarchy and no matter what efforts the company undertook to prevent the criminal act. In other words, the employee who commits the criminal act can be the lowest level employee and the company can have a variety of strict and thorough policies and procedures in place to deter the criminal conduct, and the company can still face severe financial penalties for the employee’s criminal act.

In the Second Circuit (New York), federal criminal attorneys are arguing to change this low standard which basically amounts to automatic criminal liability for a company if the the factors mentioned above are met. Pursuant to the case United States v. Ionia Management where a large commercial oil tanker company’s employees dumped waste into the sea while shipping oil for the company in violation of federal criminal law, criminal defense attorneys are arguing that the standard for vicariously attributing criminal liability to a company for the conduct of its employee(s) should be raised to apply only where the employee(s) is a higher level, managerial employee and should take into account whether and to what extent the company had policies and procedures in place to try and prevent such criminal acts from occurring. This would not only allow for a more reasonable and considered application of corporate liability for the actions of employees but also encourage corporations to proactively deter employees from committing criminal acts.

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In Jacksonville, Florida, it is not uncommon for a person to be arrested and charged for a possession of drugs (such as marijuana or cocaine) in addition to driving under the influence of alcohol or drugs. However, depending on the circumstances, the prosecutors are not allowed to use evidence of one crime to bolster the other.

For example, in Jacksonville, Florida, a police officer reported that a driver was swerving on the road and pulled him over. The officer indicated that the driver smelled of alcohol and had bloodshot eyes and slurred speech. After the DUI (aka driving under the influence or DWI) investigation, the police officer arrested the driver because he felt the driver was under the influence of alcohol to the extent that his normal faculties were impaired. When a person is arrested, he/she will be searched by the police officer. In this case, the police officer found a small bag of marijuana on the driver. As a result, an additional charge of possession of less than 20 grams of marijuana (a misdemeanor charge) was added. If this case went to trial, should both charges be tried together?

A criminal defense attorney would likely decide to separate the charges so that two different juries decided the two different charges. This would be done pursuant to a motion to sever the two charges. Why? Because the defendant has a right to have a fair determination of his guilt, or lack thereof, on each charge. Whether the defendant was under the influence of alcohol and impaired while driving and whether he was in possession of marijuana are two different issues. However, if a jury heard evidence of both alleged crimes together, a jury could easily be prejudiced and let the evidence of one crime influence their decision on the other crime. In other words, a juror might assume that a person who drives drunk would be more likely to possess marijuana or a person who carries a bag of marijuana with him probably drives while impaired. This would violate the defendant’s rights and be improper. As a result, those two charges should not be tried together.

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Not necessarily; it depends on the circumstances. Consider a case in Jacksonville, Florida where a driver caused a serious motor vehicle accident. The Jacksonville police officer showed up and reported that this driver appeared impaired, unresponsive and subject to mood swings. At the hospital, a blood sample was taken from the driver, and the test results were positive for marijuana metabolites. Can the results of this blood test be used against that driver in a trial for driving under the influence of a controlled substance (also referred to as DUI or DWI)?

In this case, a criminal defense lawyer would argue that the existence of marijuana metabolites (as opposed to the actual parent drug) in a defendant’s blood sample does not prove that the driver was under the influence of marijuana or otherwise impaired at the time of the accident. Forensic toxicologists would be used to testify that marijuana metabolites can remain in a person’s system for days after marijuana use and far beyond the time when the effects of marijuana use have worn off. The issue at the DUI trial is whether the defendant driver was under the influence of marijuana at the time of the crash to the extent that his normal faculties were impaired. Since any marijuana use could have occurred days before the crash, this evidence of marijuana metabolites is marginally relevant to the criminal case, if at all. On the other hand, this evidence of marijuana metabolites in the defendant driver’s system is highly prejudicial as it may lead jurors to assume the defendant was impaired or paint him as a drug user who was likely impaired or prone to commit such crimes. Because of the danger of this kind of unfair prejudice at the defendant’s trial, the criminal defense lawyer should argue that this evidence should be excluded from the criminal trial as more prejudicial than useful to prove the elements of the DUI crime.

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In Florida, when a defendant pleads guilty or no contest to a charge or is convicted of a crime at trial, he/she may be sentenced to a term of probation. At the beginning of the probation, the defendant, now referred to as a probationer, signs a form acknowledging that he/she consents to searches of his/her home, vehicle, person and personal effects by the probation officer(s). Normally, pursuant to the Constitution, for a person who is not on probation, the police or any law enforcement official must have a warrant, probable cause or at least reasonable suspicion of a crime before any type of search can take place. However, once a defendant is under a probationary sentence, he/she gives up those rights to some degree, and he/she is subject to searches by the probation officer(s) for no apparent reason.

However, there is a question as to what law enforcement officials can do if they find evidence, such as illegal drugs, in the search of the probationer’s home as a result of a search without a warrant or probable cause. In that case, the probation officers can use such evidence in a violation of probation proceeding. However, if police officers are involved in the search and do not take the steps to obtain a warrant prior to the search as the Constitution normally requires, the evidence likely cannot be used to support a new criminal charge. In other words, if a probationer has his/her home or other property searched without the normal Constitutional safeguards such as a warrant or probable cause, any evidence located can likely only be used against the probationer in a probation revocation proceeding. If the police or probation officer(s) suspect a probationer is committing a crime and intend to secure evidence to support a new criminal charge, they would need to obtain a warrant or otherwise follow the normal Constitutional safeguards.

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Entrapment is a word that is often misused and misunderstood. In Florida criminal law, entrapment is a defense to a crime, such as sale of drugs or drug trafficking, that can be used in limited circumstances. For instance, in a recent criminal case out of Florida, a defendant was charged with the crime of sale of marijuana (aka sale of cannabis). The defendant was not known to be a seller of marijuana but did use marijuana from time to time. The local police decided to use a friend of the defendant’s to encourage the defendant to sell marijuana to him. The “friend”, or confidential informant, was facing criminal drug charges himself and agreed to help the police in exchange for having his charges dropped. The friend contacted the defendant and asked the defendant if he could sell drugs to the friend. The defendant said he did not have any drugs and refused. The friend proceeded to call the defendant 18 times requesting to buy marijuana from him. Some of these calls were made late at night and some were to his work. Finally, the defendant agreed to buy marijuana from a dealer and split it with the friend. None of the initial contacts and communications were monitored by the police, just the ultimate exchange of the marijuana.

The defendant was then charged with sale of marijuana and later filed a motion to dismiss the charges claiming he was entrapped into selling the drugs. Entrapment is a defense that is not successful often, but it was applicable in this case. Generally, the defense of entrapment applies when a defendant is induced to commit a crime that he/she would not normally commit. If the defense is successfully presented, the charges are dismissed. In this case, the court focused on the conduct of law enforcement and the friend and found that the defendant was improperly entrapped into committing the drug sale. Some of the relevant factors in favor of the defense included: the police had no reason to believe the defendant was selling drugs before this incident, the “friend” had a lot of incentive to make the defendant agree to sell him drugs including payments per drug deal and the dismissal of his criminal charges and the police never supervised the interactions between the friend and the defendant.

While the defense of entrapment is not often successful, where the police find someone who is not predisposed to commit a crime and use excessive means to get the person to commit the crime, entrapment can be successfully asserted as a defense to have criminal charges dismissed.

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