Jacksonville Criminal Lawyer Blog

Supreme Court Rules Police Must Get a Search Warrant Before Obtaining Location Data From Cell Phone Providers

Published on: July 27, 2018 | by Lasnetski Gihon Law

In the digital age, when so many people keep cell phones, Ipads, fitness trackers and other electronic devices with them at all times, the courts are grappling with issues of privacy when law enforcement seeks to obtain information about people during their investigations. We have discussed some of these issues such as whether a police officer can look through a suspect’s phone for incriminating information upon an arrest. The police can normally search a person and check their belongings upon an arrest to make sure there are no weapons, officer safety issues or evidence if there is reason to believe evidence might be present. A phone or Ipad-like device can contain all sorts of private information and evidence. However, courts have generally ruled that the police need a search warrant to search a person’s phone even if it is seized pursuant to a lawful arrest.

Another type of data that is stored in electronic devices (or stored with third party entities after being collected by the devices) is location information. Obviously, a suspect’s location can be critical information if police are investigating an incident like a shooting, robbery or burglary, and they are trying to determine if a suspect was in the area at the time. The question that arose in this case was whether the police can contact a person’s cell phone provider and request the data they maintain showing customers’ locations. Or, do the police have to get a search warrant to request that information? Some courts across the country and in Florida have allowed law enforcement to obtain this information without a warrant based on the idea that customers do not have a reasonable expectation of privacy in their location information and/or they do not have standing to object to this information being released by some third party entity.

What makes this data different from information that is kept on one’s phone is that it is automatically generated when a person has a cell phone and it is stored by a third party rather than on one’s phone. However, the United States Supreme Court recently ruled that the police do have to get a search warrant before requesting this location data from cell phone providers. They found people do have a reasonable expectation of privacy in their location information.

How is a crash defined under the Florida DUI laws?

Published on: June 29, 2018 | by Lasnetski Gihon Law

A recent case involving a DUI arrest near Jacksonville, Florida raised the issue of what constitutes a “crash” under the Florida DUI laws. More specifically, does a crash require some sort of property damage or injury or is a collision simply enough regardless of whether any vehicle is damaged or a person is injured? Why is this important? It could make all of the difference in a DUI case.

In Florida, a police officer is not generally allowed to arrest a person for a misdemeanor crime without a warrant unless he/she or another police officer observes the crime being committed. There are exceptions to this rule in various areas of criminal laws. In DUI cases, the exception is that police officers can arrest a person suspected of DUI without observing the crime if the police officer discovers evidence to support the DUI arrest after a traffic crash. So, if a police officer learns that a person is driving erratically and may be drunk from a lay witness and only finds the suspect after he is outside of his car, never having seen him driving or in the car, the officer would not be able to make the DUI arrest because the criminal conduct did not occur in the police officer’s presence.

On the other hand, if a person is driving under the influence of alcohol or drugs and gets into a traffic crash, the police are called and the police officer arrives after the suspect exits the vehicle, the police officer can still make a DUI arrest if the officer obtains evidence that the suspect was driving the vehicle and was impaired.

What If I Refuse Field Sobriety Exercises When Stopped For A DUI?

Published on: June 18, 2018 | by Lasnetski Gihon Law

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In the State of Florida, you can be compelled to perform Field Sobriety Exercises. This doesn’t mean that the officer can physically force you to perform the exercises. It simply means that the officer does not have to obtain your consent and your refusal to perform the field sobriety exercises can be used against you in court. So how would this play out? Let’s take a look:

What are Field Sobriety Exercises?

Field Sobriety Exercises are physical tasks that an officer will ask you to perform when that officer suspects that you are driving while under the influence of alcoholic beverages or drugs. Some of the exercises are standardized, meaning that the instructions and the way they are conducted are the same everywhere in the United States. Some of the exercises are not. Some examples of Field Sobriety Exercises are the Walk and Turn exercise, the Finger to Nose exercise, the One Leg Stand Exercise, the Rhomberg Alphabet exercise, and the Rhomberg Balance exercise. Each exercise is designed to divide your attention so you are concentrating on different tasks. For example, during the walk and turn exercise, you have to listen to instructions, remember to keep you arms by your sides, place one foot in front of the other heal to toe, walk down a line, take 9 steps, turn taking small steps during the turn and take 9 steps back, all while not swaying, raising your arms or stopping. The officer will mark down each thing that you do wrong and will form an opinion on whether you are impaired or not based on how you do on the Field Sobriety Exercises. In the real world however, the officer may have already formed an opinion about whether you are impaired before you ever start the field sobriety exercises and they may use the results of the field sobriety exercises to gather evidence against you.

The Automobile Exception Does Not Apply to Vehicles Within the Curtilage of the Home

Published on: June 1, 2018 | by Lasnetski Gihon Law

In a case that was recently decided by the United States Supreme Court, the issue was whether the police could go onto a suspect’s property and search a vehicle that was in the driveway under a partially enclosed portion of the house, likely something built to provide shade for the vehicle. In this case, the police were searching for a stolen motorcycle. They believed the motorcycle was located at the house in question. When they arrived, they saw what appeared to be a motorcycle under a tarp in the driveway. The police officer walked onto the property, looked under the tarp and ran the tag of the motorcycle. After determining the motorcycle was stolen, the owner of the house was arrested.

The criminal defense attorney filed a motion to suppress the evidence of the stolen motorcycle because the police officer did not have a legal basis to search it on the defendant’s driveway. There are a couple of legal principles involved here. There is something called the motor vehicle exception in search and seizure law. Normally, if the police want to search the property of a person, the police have to get consent or a search warrant. However, automobiles are different for two reasons. One, there is less of a reasonable expectation of privacy in an automobile because they are driven around and parked in public, and people can generally see inside of them through the windows. Two, automobiles are easier to move from one place to another making it easier to dispose of evidence inside. As a result, the automobile exception allows a police officer to search an automobile without a search warrant if the police officer has probable cause to believe there is evidence of a crime in the vehicle.

A competing issue in this case is the idea that people have a strong expectation of privacy in their homes and the immediate area surrounding their homes, i.e. the curtilage. The curtilage is generally defined as the immediate area surrounding the home along with a porch and any enclosed areas near the home. This would also seem to apply to property that is enclosed by a fence that is clearly not open to the general public. The police may not go into these areas to search without consent or a search warrant.

Florida Police Try to Use Three Year Old Consent to Search Property for Marijuana

Published on: May 17, 2018 | by Lasnetski Gihon Law

In Florida, one exception to a search warrant requirement is consent to search from the owner of the property or someone in possession of the property who appears to have authority to give consent. Police can generally walk up to any person, vehicle or residence and ask to search without a warrant and without probable cause. If that property owner agrees, the police are free to search. However, there are limitations, and people should always understand they have a constitutional right to refuse any police request to search one’s property.

In this case, police officers drove to the defendant’s property in a rural area south of Jacksonville, Florida. They went through an open fence and ignored the “No trespassing” signs. They knocked on the front door, but no one answered. The officers then got back into their vehicle and kept driving on the property to a barn where they found marijuana. They ultimately arrested the property owner for various marijuana charges.

The criminal defense attorney filed a motion to suppress all of the marijuana evidence because the police did not have a right to come onto their property and search it. At the hearing, the police officers testified they previously had permission to enter the property. It was determined during the hearing that the permission was given three years earlier by the previous property owner.

Apparent Possession of a Concealed Firearm is not Sufficient for Police in Florida to Pat Down Suspect

Published on: May 12, 2018 | by Lasnetski Gihon Law

In a criminal case just south of Jacksonville, Florida, the defendant was arrested for possession of a firearm by a convicted felon after an employee at a restaurant called the police and reported that he appeared to have a gun in his waistband. There was no indication the defendant pulled out a gun, was acting in a suspicious manner or used or held it in a threatening manner. When the police arrived, they saw a bulge in the defendant’s waistband but could not tell it was a gun. The police officer patted the defendant down and discovered the gun. Afterwards, they determined that the defendant was a convicted felon.

The criminal defense lawyer filed a motion to suppress the evidence of the gun because it was not a legal search. In order for the police to legally search a person, or just pat a person down for weapons, the police must, at a minimum, have reasonable suspicion that the person is involved in criminal activity. In order for the police to conduct a stop and frisk, the police must have reasonable suspicion that the person is armed and dangerous.

In this case, the police did not have reasonable suspicion of criminal activity. It is not illegal to carry a gun in Florida. Therefore, the fact that a person has a gun in public is not evidence of criminal activity. It might be illegal for a person to carry a concealed weapon in public, but only if that person does not have a concealed firearms permit. When the police stopped and patted the defendant down, they did not know whether or not he had a concealed firearms permit. Therefore, they did not have evidence he was committing a crime even if they knew he had a gun concealed in his waistband.

Prosecutor in Florida Theft Case Uses Defendant’s Facebook Post to Prove Case

Published on: May 7, 2018 | by Lasnetski Gihon Law

With the proliferation of social media, the state has an extra tool it can use to obtain evidence and prove cases in court. At this point, people should understand that posting information on the internet, whether pictures, conversations, documents, etc., does not come with a reasonable expectation of privacy. The police or prosecutors can subpoena information from internet service providers or simply go on a defendant’s social media page and print off or download incriminating information. The bottom line, whether in relation to a criminal case, a civil case or just generally- do not post things on the internet that you would not want the police or the general public to see.

For example, in a case just south of Jacksonville, Florida, the police were investigating two auto thefts that happened in similar locations within an hour of each other. The police developed suspects for the two auto thefts and ultimately obtained one of the suspect’s cellphones. They obtained a search warrant for the phone and saw Facebook postings showing two defendants in the stolen cars. One of the defendants was wearing one of the victim’s watches. The videos were posted on Facebook shortly after the second auto theft. The victims were able to identify the suspects through the Facebook videos. Both defendants were convicted based on the Facebook videos.

This was a fairly extreme example of stupidity on the part of the defendants, but people do post things on the internet that implicate them in crimes or negatively affect civil cases. It may not be as obvious and direct as this, but it does happen, and police, prosecutors and parties in lawsuits do check Facebook pages and other social media to try to find evidence that helps their cases. In Florida, as long as the internet evidence is legitimate and unaltered, it very likely may be used as evidence in court.

Can the Police in Florida Obtain Blood or Medical Records From DUI Suspect With a Subpoena?

Published on: May 1, 2018 | by Lasnetski Gihon Law

In most DUI (driving under the influence of alcohol or drugs) cases in Florida, the police arrest a person they believe is driving while impaired. That DUI suspect is taken to the jail and booked. Only after the suspect is taken to the jail do the police ask the suspect to take a breathalyzer test to test the suspect’s blood alcohol level. In some cases, where the breathalyzer test is not practical, often when there is an accident and the suspect is taken to the hospital, the police will request a blood draw to test that blood for alcohol content.

A DUI suspect may refuse a breath test or a blood test. Due to the implied consent laws in Florida, a refusal may come with certain consequences (such as a longer driver’s license suspension and the state trying to use the refusal as evidence in court), but the suspect cannot be forced to submit to a breath, blood or urine test as a general rule.

However, if the DUI suspect refuses the breathalyzer or a blood or urine test, the police may try to get a subpoena for the blood that they can send to the lab to test for alcohol content. Alternatively, the state can try to subpoena a person’s medical records in cases where a suspect went to the hospital after a crash, and the hospital tested the suspect’s blood for alcohol or drugs. It’s not something we see often, but a subpoena is a tool the police and the state have to obtain evidence when it is otherwise difficult or impossible for the state to get that evidence. In a DUI case, that evidence can be the difference between a strong case and a weak case.

Nearly 30 Minute Delay During Florida DUI Investigation Was Too Long So DUI Case Thrown Out

Published on: April 23, 2018 | by Lasnetski Gihon Law

In DUI cases, the police generally observe a driver break some traffic law and then initiate a traffic stop. If the police officer claims to observe evidence that the driver is drunk or otherwise impaired, that officer will start a DUI investigation. However, the police officer in Florida does not have unlimited time to establish probable cause to make a DUI arrest. If there is an unnecessary and lengthy delay during this DUI investigation, further evidence of impairment can be suppressed.

In a DUI case just south of Jacksonville, Florida, a police officer stopped the defendant for failing to maintain his lane. The officer approached the defendant and determined that there was evidence that he was impaired from alcohol. For some reason, the first officer did not continue with any DUI investigation and called other officers to the scene. The next police officer to arrive did not have a video camera in his car so another officer was called. Twenty-five minutes after the initial stop, the officer who conducted the DUI investigation arrived to investigate the DUI. Three minutes later, he started his DUI investigation. Nothing was done during that time to advance the DUI investigation. The defendant was kept in his vehicle at the scene waiting for 28 minutes. After the DUI investigation was completed, the defendant was arrested for DUI.

The criminal defense lawyer filed a motion to suppress all of the evidence of the DUI investigation because the defendant was kept at the scene for an unreasonable period of time without evidence that he had committed a crime. That evidence did not come until at least 28 minutes after the initial traffic stop. The court agreed and suppressed the evidence. There is no bright line rule in Florida which says how long the police can keep a DUI suspect at the scene. It depends on the circumstances of the case- for instance, the reason for the delay, how much evidence the police have of DUI at each stage of the process and the length of the delay. However, in this case, there did not appear to be a legitimate reason for the delay to start the DUI investigation so 28 minutes was considered too long of a detention. If the detention is unreasonably lengthy, it is unlawful, and if it is unlawful, evidence obtained during that detention is not admissible.

Police Unlawfully Search Person at Florida House Where Marijuana Was to be Delivered

Published on: April 18, 2018 | by Lasnetski Gihon Law

People ship drugs to other parts of the country. They do it using the US Postal Service and Federal Express and UPS and any other delivery service. They do it by shipping to a location where nobody lives expecting someone on the other end to pick it up as soon as the package arrives. Other times, they ship it to a known address but address the package to a fake name so the person who receives it can claim ignorance if the police find out. And there are other methods people use to send illegal drugs to other people. The police catch many of these packages. Many of these packages have similar appearances and methods of shipment. Law enforcement also use drug dogs at the shipping facilities to smell packages (particularly those from states where marijuana is now legal). When they find a package that contains illegal drugs, they will attempt a controlled delivery which often consists of a police officer pretending to be a deliveryman and delivering the package to the listed address. Once a person at the address accepts the package, police will come in and make arrests.

In a recent case near Jacksonville, Florida, the police discovered a suspicious package at UPS and decided to investigate. They learned that it was addressed to a fake person. They got a search warrant to open the package and found marijuana inside. One of the police officers disguised himself as a UPS driver and attempted to deliver the package, but no one answered the door. Later, the police knocked on the door to try and interview the resident. As they did so, an individual drove up to the residence. The police detained that individual and asked him questions to see if he was involved with the marijuana package. The police brought a drug dog to the scene and had the dog walk around the person’s vehicle. After alerting to that vehicle, the police searched it and found marijuana and other drugs inside.

The criminal defense lawyer filed a motion to suppress the evidence of the drugs found in the vehicle because the police did not have a legal basis to detain and keep the defendant at the scene. While the defendant did ultimately consent to a search of his car, it was after the detention which the criminal defense attorney argued was illegal. Consent is not voluntary if it is the result of an illegal detention.