Jacksonville Criminal Lawyer Blog

Consensual Encounter with Police Officers vs. an Illegal Detention

Published on: June 12, 2008 | by Lasnetski Gihon Law

When is an encounter with a police officer considered consensual and when is it considered an illegal detention under Florida law? The answer could be the difference between incriminating evidence being used against a defendant charged with a crime like possession of drugs or possession of a firearm by a convicted felon and having crucial evidence like drugs or a gun being thrown out of court.

The general rule in Florida is that the police may request identification, typically a driver’s license, from a person and briefly hold onto that identification for a reasonable period of time, perhaps long enough to check the person for outstanding warrants. This is considered a consensual encounter with police. However, depending on the circumstances, if the police officer holds onto a person’s license or other identification for longer than necessary for the warrants check or if the police officer shows other signs of authority, the encounter may turn into an illegal detention. If the encounter with police turns into an investigatory detention and there is no reasonable suspicion of criminal activity to support the detention, the detention may likely be considered illegal and any evidence obtained as a result should be thrown out.

Factors that support the argument that an encounter with the police has shifted from consensual to an investigatory detention are:

Violent Crimes in Jacksonville, Florida and Other Big Florida Cities on the Increase

Published on: June 11, 2008 | by Lasnetski Gihon Law

Violent crimes, including murder, rape and robbery, increased between 2006 and 2007 in Jacksonville, Florida and other major cities in Florida, according to the FBI’s Uniform Crime Report. Of the 17 cities in Florida with over 100,000 residents, the murder rate increased in 10 of them. Murders increased in Jacksonville by 12%. In addition to Jacksonville, violent crimes increased in just about every city in South Florida with a population over 100,000. In all of Florida, Orlando was statistically the most violent city.

Despite the increase in violent crimes in Jacksonville and many other cities in Florida, the violent crime rate decreased nationwide between 2006 and 2007 by 1.4%. The decrease in violent crimes can be partially attributed to the Northeast where violent crimes decreased by 5.4%. In the South as a whole, violent crimes increased by 0.7%.

After a Traffic Stop by Police, Can You Refuse a Field Sobriety Test?

Published on: June 10, 2008 | by Lasnetski Gihon Law

The field sobriety test during an investigation by police for driving under the influence of alcohol or drugs (DUI) consists of a few tests administered by the police officer, like the horizontal gaze test, standing on one leg, walking in a straight line and turning around and reciting the alphabet. A police officer often will ask a driver to submit to a field sobriety test if he/she thinks the driver is under the influence of alcohol or drugs.

A typical traffic stop that turns into a DUI investigation might go something like this. A police officer will observe a driver violate a traffic law such as failing to maintain one’s lane, rolling through a stop sign or speeding. The police officer will then pull the driver over, approach the driver and ask a few questions. If the police officer observes what he/she subjectively considers evidence of intoxication, the police officer may ask some questions pertinent to a DUI investigation such as whether or not the driver has been drinking or using drugs and if so, to what extent. The police officer may then ask the driver to submit to a field sobriety test.

A driver in Florida is not required to submit to a field sobriety test. If a driver does submit to a field sobriety test, there is no objective criteria that measures whether or not the driver passes or fails. It is up to the discretion of the police officer. There are several reasons why a completely sober person might fail a field sobriety test depending on his/her age, level of coordination, physical condition, nervousness and many other actors. Anyone who feels like he/she has one of these conditions that would affect the results of a field sobriety test should seriously consider refusing the test. If the driver submits to a field sobriety test and the police officer determines that he/she fails, the officer will testify as to his/her version of what happened during the test and his/her interpretation of the results. Of course, a refusal to submit to a field sobriety test can be used against a driver at a DUI trial, but there may certainly be valid reasons for the refusal completely unrelated to alcohol or drug use.

Jacksonville Florida Woman Arrested and Charged for Threats, But Was it Assault?

Published on: June 8, 2008 | by Lasnetski Gihon Law

A Jacksonville, Florida mother was recently arrested after an incident at Sadie Tillis Elementary School where she allegedly threw objects at the principal, broke a table and made threats to come back and shoot up the school, according to a news article on www.News4jax.com. Clearly, if true, her conduct was inappropriate and needed to be taken seriously to ensure that the children at the school were not placed at risk, but the nature of her remarks provides an opportunity to look at what elements must be present to commit the crime of assault, a term often used in everyday discussion but rarely truly defined.

The Florida crime of assault is committed when a person: 1) makes an intentional and unlawful threat by word or act, 2) to do violence to another person, 3) coupled with an apparent ability to commit the threatened act, and 4) doing some overt act that reasonably creates fear in the other person that the violence is imminent. As a result, words alone are insufficient to form the basis of an assault. There must be some corresponding act that reasonably would put another person in fear that the violence is coming fairly soon along with circumstances that indicate the person has the ability to commit the threatened act. Additionally, threats to do violence that are conditioned upon some other factor typically do not form the basis for an assault as the violence would likely not be imminent.

Looking at the facts of this reported criminal case, if the woman threw an object at the principal, that could form the basis for an assault. However, any verbal threats made, however horrible they may be, would not fit the definition of an assault unless the woman had the apparent ability to follow through with the violence and another person was in reasonable fear of being the victim of imminent violence.

Police Officer Named in Search Warrant Should Be Present For Search

Published on: June 6, 2008 | by Lasnetski Gihon Law

Consider a Jacksonville, Duval County, Florida search warrant scenario where Jacksonville Sheriff’s Office Officer A goes to a judge and presents evidence to establish that there is probable cause to search a house for the presence of marijuana, cocaine or other illegal drugs. The search warrant directs Officer A to perform the search. After the judge signs the search warrant, Officer A calls a fellow officer to tell him the search warrant has been signed. The other police officers at the residence start the search while Officer A is en route. Marijuana is found at the residence by one of the other police officers. Is this a valid search of the residence? Probably not according to a recent case out of south Florida.

It is likely that the police officers’ search of the residence for marijuana will be found to be improper because of how it was executed. If the search warrant directs the affiant (the police officer testifying to the judge regarding probable cause to issue the search warrant) to perform the search, that police officer must be present when the search is undertaken. If he or she is not present, any evidence found during the search, such as drugs or guns, may be thrown out of court.

A criminal defense lawyer should determine if any police officer(s) was directed to perform the search in the warrant and if that officer(s) was in fact present for the search. Of course, other police officers can assist any police officer named in the search warrant as the search is performed. Additionally, other police officers are permitted to secure the premises to prepare for the search, and this does not have to be done in the presence of the police officer named in the search warrant.

In Florida, Watch the Speedy Trial Issue When Misdemeanor DUI Turns Into Felony DUI

Published on: June 4, 2008 | by Lasnetski Gihon Law

In Jacksonville and throughout Florida, a DUI can be bumped from a misdemeanor crime to a felony crime if the offender has three prior misdemeanor DUI convictions. If the state prosecutors can prove that the person committed the fourth DUI after three prior misdemeanor DUI’s, that fourth DUI can be classified as felony DUI conviction, which carries greater penalties than a misdemeanor DUI conviction.

However, as a recent Florida criminal case illustrates, there is a speedy trial issue that can affect how and when the felony DUI can be prosecuted. When a person is charged with a misdemeanor crime, the state has 90 days to bring the case to trial. Failure to try the case within that time period means the misdemeanor charge must be dismissed. For felony crimes, the speedy trial period is 175 days.

How does this work in Florida when a DUI starts out as a misdemeanor and then the prosecutor bumps the charge up to a felony? Which speedy trial period applies? It depends on how the transition of the DUI charge from misdemeanor to felony is done. If the state dismisses, or nolle prosses, the misdemeanor DUI charge, the felony court has sole jurisdiction of the DUI charge and the 175 day speedy trial period applies. The same is true if the state files a motion to consolidate the misdemeanor DUI charge into the felony DUI charge. However, if the state merely transfers the case to the Circuit Court (the felony court) then the County Court (the misdemeanor court) keeps jurisdiction of the misdemeanor DUI charge, and the 90 day speedy trial period is still in effect for that charge. As a result, if the DUI case is not tried within 90 days, the misdemeanor DUI charge must be dismissed. Then, the felony DUI charge must also be dismissed because the felony DUI charge depends on a conviction of the current misdemeanor DUI charge, which is impossible since it has been dismissed in misdemeanor court.

Withdrawal of a Guilty or No Contest Plea to a Crime in Florida Due to Possible Deportation

Published on: June 2, 2008 | by Lasnetski Gihon Law

Criminal defendants in Florida who are subject to deportation if they plead guilty or no contest to a crime must be informed of the possibility of deportation before they enter a plea of guilty or no contest to a crime. This is typically done during what is called the plea colloquy where the judge informs the criminal defendant of his or her rights prior to pleading guilty or no contest to a crime.

The criminal defense lawyer for a defendant should also determine if the client is subject to deportation if he or she pleads guilty or no contest to a crime and discuss this with the defendant before the decision to enter the plea is made.

If a criminal defendant in Florida (who is subject to being deported) pleads guilty or no contest to a crime without being told that he or she could be deported as a result of the guilty or no contest plea, the criminal defendant may be allowed to withdraw his or her guilty or no contest plea. The result of a withdrawal of the plea is that the defendant is in the same position he or she was in before the guilty or no contest plea was entered. The same charges are still pending.

Fewer Federal White Collar Crimes Prosecuted Under Bush Administration

Published on: May 30, 2008 | by Lasnetski Gihon Law

There has been a clear trend of fewer white collar crime cases being prosecuted in federal court over the last seven years under the Bush administration, according to an analysis done by the Transactional Records Access Clearinghouse (TRAC) which reviewed the records of thousands of federal criminal cases. TRAC also concludes that this trend will continue at least until 2009, when the new administration takes over.

Some of the statistics showing the decreasing number of white collar crimes pursued by federal prosecutors include: the prosecution of all federal white collar crimes is down 27% since 2000; there are about half the number of federal charges against organized crime suspects than there were in 2000; the prosecution of federal drug cases is down 20% from ten years ago; and the prosecution of federal weapons cases is down 21% since 2004. According to the study, only federal immigration crimes have seen an increase in federal prosecutions since 2000 (a 127% increase). Based on changes in staffing and budgeting of funds, the study concluded that this trend is likely to continue.

The TRAC study is consistent with an article written in August of last year on www.Seattlepi.com which discussed the number of white collar crimes which had not been prosecuted by the federal government. That article noted that approximately 2400 federal agents were transferred from various criminal divisions to handle counter-terrorism matters after 9/11. They have not since been replaced. After a six month investigation, Seattle PI concluded that the number of criminal cases investigated by the FBI declined by 34% from 2000 to 2005 and white collar crime cases referred from the FBI to federal prosecutors went from about 10,000 in 2000 to 3,500 in 2005.

Long Federal Prison Sentence for Manager of Popular Bands, But With Incentives

Published on: May 28, 2008 | by Lasnetski Gihon Law

Lou Pearlman was the creator of two of the most famous young bands (The Backstreet Boys and N’Sync), but he was recently sentenced to 25 years in prison after being convicted of the federal crimes conspiracy, money laundering and making false statements, according to the Orlando Sentinel. Pearlman defrauded more than 1,000 people and banks out of approximately $500 million. The prison sentenced ordered by the U.S. District Court Judge in Orlando, Florida was agreed to by federal prosecutors. Pearlman would normally serve 85% of his prison sentence, however the judge did give Pearlman an opportunity to reduce his sentence by one month for every million dollars he returns to the victims of his crimes.

The federal crimes Pearlman committed were part of what is commonly called a Ponzi scheme. A Ponzi scheme occurs when someone, presumably a good communicator and seemingly savvy businessperson or investor, makes claims that he/she can make excessively high financial returns for potential investors. The Ponzi schemer is typically someone who appears to have a lot of money giving the impression that he/she can do for others what he/she has already done for him/herself. Once a few victims are attracted to the scheme and pay their initial investments, the offender typically pays part of the promised profits to some of the initial investors. This serves the purpose of gaining trust and also generates some third party advertising.

However, the problem, and the crime, is that there are no high yield investments. The initial money that was returned to investors 1, 2 and 3 as profits are really the initial “investment money” that was paid to the Ponzi schemer by investors, or victims, 4, 5 and 6. So, going forward, initial victims are paid periodically from the funds of subsequent victims. Ponzi schemes while effective initially, depending on the skill of the person running it, are generally destined to fail. The obvious flaw is that victims are going to eventually want their money back plus the promised profits. As the Ponzi schemer runs out of new investors, or victims, he/she also runs out of money to pay his investors since there were never any real investments or legitimate source of profits. Ultimately, the victims will figure out the scheme and talk to other victims as well as the police. At that point, the Ponzi scheme collapses and often, unfortunately, the victims find that the money they thought they invested is gone.

Victim’s Negligence May Not Absolve Defendant From Guilt for Vehicular Homicide Crime in Florida

Published on: May 26, 2008 | by Lasnetski Gihon Law

In Florida, the crime of vehicular homicide occurs when a driver kills another person by driving a motor vehicle in a reckless manner such that another person is likely to die or be seriously injured. One possible defense to the crime of vehicular homicide, particularly in the drag racing context, is whether the cause of death could be attributed to someone other than the defendant, for instance, the victim or another person involved in the accident.

Consider a drag race that occurred in Florida a few years ago that resulted in a conviction for vehicular homicide. The defendant was drag racing with another vehicle occupied by a driver and a passenger. Both cars sped towards a part of the road that narrowed. The other vehicle tried to speed up and pass the defendant, but the defendant also sped up and would not let the other car pass. As the two cars raced towards the narrow portion of the road, the other car lost control and the passenger died. The defendant, who managed to safely stop his car without crashing, was charged with felony vehicular homicide and racing on a highway.

The criminal defense attorney for the defendant argued that the defendant was not guilty of vehicular homicide because his actions did not cause the crash or the death. The criminal defense lawyer argued that the other driver caused the death of his passenger by speeding up and then losing control of his car. Alternatively, the criminal defense lawyer argued that the victim herself caused her death by voluntarily participating in the drag race.