Articles Posted in Criminal Procedure

In this drug case near Jacksonville, Florida, the defendant was arrested for sale of marijuana in 2007. However, the state did not file the marijuana charges until 2010. The criminal defense lawyer for the defendant filed a motion to dismiss the charges claiming that the three year delay was a due process violation and prevented the defendant from adequately defending the case.

The state had an opportunity to present witnesses to explain the legitimacy of the three year delay. One of the officers said he thought the federal government might take the case so he did not discuss the case with the state authorities to have them pursue it. It is normal practice for the state to hold off in prosecuting a case if the federal government is going to pursue it. However, nothing prevents the state from filing charges, and three years is a long time for the federal government to make a decision. In this case, the federal government apparently decided not to pursue the case a year and a half after the arrest. The state officials did not provide a good excuse as to why they waited an additional year and a half to file the drug charges after the federal government decided not to file their charges.

The two primary issues when considering a motion to dismiss based on a delay in filing charges after the arrest are the reason for the delay and whether the delay compromises the defendant’s ability to defend the case. The judge in this case dismissed the charges because the state did not provide a good excuse for the three year delay and the defendant presented a witness whose benefit to the defendant was diminished by the fact that her memory of the incident had faded.

Social networking websites like MySpace and Facebook have had major impacts in criminal cases. People will post messages on their Facebook pages, or post messages to another’s Facebook page, that they would not want coming out in a criminal trial. However, if the message is relevant to an issue and the authenticity of the message can be established, the message can be brought out for the judge and jury to see. This can have a very significant impact on a defendant, good or bad, or any other witness in a case.

In a recent sexual battery case south of Jacksonville, Florida, a defendant was accused of raping and beating his ex-girlfriend. Several months after the arrest, the alleged victim sent a series of insulting messages to the defendant’s new girlfriend through Facebook. At the trial, the criminal defense lawyer sought to introduce the evidence of the Facebook messages so he could cross-examine the ex-girlfriend with them. The state objected saying they were prejudicial and irrelevant. However, the court ultimately ruled that the derogatory messages sent by the alleged victim were admissible for cross-examination.

At any criminal trial, a criminal defense attorney has a right to fully cross-examine the state’s witnesses, and that includes the right to explore a witness’s biases and improper motives to testify against the defendant. In this case, the Facebook messages supported the defense argument that the alleged victim was jealous of the defendant and had a motive to lie as a result. Therefore, the criminal defense lawyer had a right to bring them into the trial and use them to question the alleged victim and attack her credibility.

The government has been using people’s cell phones to track their current locations, and past locations, for some time without a search warrant. When a person has a cell phone, it sends a ping to the nearest cell phone tower. Cell phones with GPS devices, which include most of them these days, send the electronic ping signals constantly. Law enforcement officials can track this signal to get an approximate location on a person. They can also obtain this data to determine if a person was in a particular location at a particular time. The government has been using this cell phone data to track and learn people’s locations for a while, and they have been doing so without first obtaining a search warrant.

A recent study by the ACLU found that many police departments were tracking people through their cell phones with little or no court oversight. Very few of the police agencies that were tracking cell phone signals had applied to a court for a search warrant in advance. Currently there is a bill moving through Congress that would end this practice and require law enforcement agencies to get a search warrant from a judge before they could access a person’s location through his/her cell phone signals. Another bill moving through Congress would require a search warrant before a police officer could track a person’s current location, but not a person’s prior location. The Obama administration is against the search warrant limitation for tracking one’s cell phone. They argue that a person does not have an expectation of privacy in his/her cell phone signals that are transmitted through a wireless carrier and it would be too burdensome on government officials to get a search warrant every time prior to tracking one’s cell phone.

It is safe to say that most people in this country own a cell phone and use it to communicate in a variety of ways. There is a growing trend for people to cancel their landline phone numbers at home and rely exclusively on their cell phones. What people may not know is that the various law enforcement agencies around the country routinely track cell phones without warrants and without notifying the user in any way.

This tracking can take the form of tapping into the GPS information on a phone to learn a person’s location (which of course is very useful if a child or other person is missing). Most phones these days have GPS capabilities so their locations can be tracked. The police tracking also takes the form of directing phone companies and software companies like Google and Apple to give the law enforcement agencies location information, text messages and data that can be used for investigative purposes. Law enforcement agencies can also have the phone companies clone a person’s cell phone so the agency can receive the same text messages and other data as the user.

Some law enforcement agencies do get search warrants before seeking this kind of information. However, many do not which leaves a lot of discretion with the various police agencies and gives them free reign to intrude into a person’s private life for “investigative purposes”, whatever that may mean in any particular case.

In Florida, it is illegal for a person to record another person’s oral communications (whether on the phone or in person) without consent of all the parties to the conversation or a court order. If the police or any other person secretly records an incriminating statement of a defendant without the defendant’s knowledge and consent or a court order, that recorded statement cannot be used in court. However, there are exceptions to the law that says these secret recordings are admissible in court.

Most people understand at this point that 911 calls are recorded and generally can be used against the defendant at trial. This includes incoming calls into the 911 operator as well as outgoing calls from the 911 operator in certain situations. If someone calls 911 and the 911 operator has to call that same number back in order to obtain further information to respond to the emergency, that call can be recorded and used in court just like an incoming call to 911. However, those are the only two situations when a 911 operator’s call can be recorded and used in court against a defendant.

A recent aggravated assault and possession of drugs case near Jacksonville, Florida presented a slightly difference scenario in which the state tried to use a recorded 911 call against the defendant. In this case, the 911 operator received a call from a neighbor who indicated there was a disturbance next door. The neighbor gave the 911 operator the phone number of the house where the disturbance was occurring. The 911 operator called the number. The phone calls was answered, but no one spoke. The line remained open, and the 911 operator heard a voice threatening to shoot the residents of the home. The police arrived and found the defendant with a gun, marijuana and pain pills without a prescription.

In Florida, a defendant’s statement or confession is not admissible at a trial until the state sufficiently proves what is referred to as corpus delicti. Corpus delicti refers to the legal elements that are necessary to prove that a crime occurred. The state must first prove these legal elements with substantial elements independent of the confession. In other words, the state cannot merely use the confession to prove that the crime occurred. On the contrary, the state must present evidence that the crime occurred before the state can present the confession in court.

The concept can be illustrated by a recent criminal case south of Jacksonville, Florida. In this case, the defendant was charged with possession of cocaine and tampering with evidence. A police officer was investigating complaints of drug activity. He observed the defendant in a high crime and drug area. The defendant had a few brief encounters with some individuals. The police officer assumed these were drug transactions but was not close enough to see any details. The police officer stopped the defendant and observed him apparently throw something into his mouth and swallow it. The police officer assumed it was crack cocaine and arrested the defendant. After his arrest, the defendant admitted to buying the crack cocaine and swallowing it when the police officer approached him.

This confession was clearly sufficient to establish that the defendant possessed crack cocaine and tampered with the evidence by swallowing it. However, the confession was thrown out because the state could not prove the elements of any crime without the confession. The police officer made assumptions as to what the defendant was doing, and he was right based on the confession, but the police officer did not have any actual evidence that the defendant committed a crime so the confession was not admissible.

In theft cases and other cases where the defendant caused an economic loss to the victim, the judge will often put the defendant on probation and order him/her to pay restitution over time. Restitution is the money the defendant must pay back to the victim for the loss caused by the defendant. If the defendant fails to pay the restitution in full, and/or fails to comply with any other term of probation, the judge can issue a warrant for the arrest of the defendant for a probation violation. After the defendant’s arrest on the violation of probation warrant, there may be a probation violation hearing at which the state has the burden of proving that the defendant did not comply with the terms of probation. The burden of proof on the state is much lower in a probation violation hearing than it is for a regular criminal case.

If the alleged probation violation deals with failure to pay restitution, the judge cannot find a violation of probation based solely on the fact that the defendant failed to pay restitution. In other words, failing to pay restitution, by itself, is not a violation of probation.

Under the United States Constitution, a person is not supposed to be sentenced to jail or prison due to an inability to pay. Therefore, in order for a judge to find that a person has violated probation for failure to pay restitution, the state must prove that the person had the ability to pay and willingly failed to do so- merely proving to the judge that the defendant was required to pay restitution and did not is not sufficient. It is the state’s burden to prove this essential element. If the state does present sufficient evidence on this element, the defendant still has a right to show that he/she did not have the ability to pay and/or did not willingly fail to pay. It is never the defendant’s initial burden to prove that he/she did not have the ability to pay restitution to avoid a probation violation.

In Florida, police officers are supposed to make arrests only within their own jurisdiction. For instance, a Jacksonville Sheriff’s Office officer is not permitted to make an arrest for a crime that takes place in Clay County or St. Augustine, Florida. However, there is an exception to the rule in cases where the police officer is in “fresh pursuit” that causes him/her to leave his jurisdiction to go into another city or county.

The fresh pursuit law allows a police officer to pursue a person who has committed a felony or misdemeanor crime, a county or city ordinance violation or certain traffic violations into another jurisdiction to make an arrest or traffic stop. The law also allows the police to chase a person who is only suspected of committing a felony into another jurisdiction. The police officer is then allowed to detain and arrest the suspect in that other jurisdiction. Once the arrest outside the jurisdiction is made, the police officer must immediately notify the appropriate police officer in the particular county or city where the arrest was made.

In order for the fresh pursuit law to be applicable, the police officer must actually be chasing the suspect into the next jurisdiction without any delays. If the police officer believes the suspect has committed a crime, ordinance violation or traffic violation and merely follows the suspect without trying to pull the suspect over in his/her jurisdiction, the police officer cannot go into another jurisdiction to make the arrest because it is not a fresh pursuit.