Jacksonville Criminal Lawyer Blog

When Does an Encounter With Police Become a Seizure Under the Law in Florida?

Published on: April 4, 2017 | by Lasnetski Gihon Law

The Fourth Amendment and the Florida constitution provide that people have a right to be free from unreasonable searches and seizures conducted by the state. There are thousands of court cases that interpret what exactly this means in the context of the different police encounters. As a general rule, the police in Florida are allowed to go up to anyone and ask questions, even if the police suspect that person committed a crime and are trying to acquire incriminating information. Of course, that person is free to refuse to answer those questions. The police can walk up to a person’s front door (as long as access is not protected by a gate or other privacy barrier) or knock on a driver’s window to ask questions. If the subject chooses to engage the police and answer, the constitutional search and seizure provisions do not apply.

However, if the encounter develops into what is considered a seizure, the police need to establish reasonable suspicion of criminal activity or probable cause or possibly have a search warrant depending on the circumstances. For instance, consider an example where a police officer sees a car stopped somewhere suspicious with the driver inside the vehicle. The officer might suspect something improper or just wonder if the driver is having trouble of some kind. Often, the police officer will suspect that the driver is driving under the influence of alcohol or drugs (DUI). That police officer can approach the vehicle, look into the window and investigate further. The police officer can ask the driver to roll down the window so they can talk. If the driver agrees or voluntarily exits the vehicle, this is considered a lawful and consensual encounter.

What often takes this scenario to the next level is if the driver does not respond for whatever reason or refuses to answer the police officer. Normally, the police officer will then order the driver to turn off the vehicle or roll down the window or step out of the vehicle. The police officer might park his/her vehicle behind the other vehicle preventing it from leaving. The key to whether an encounter escalates into something requiring evidence of criminal activity is whether the subject reasonably feels like he/she is free to disregard the officer and leave. In reality, when a police officer asks or tells anyone to do anything and that person refuses or ignores the officer, the officer is almost never going to let it go. However, under the law, there are certain situations which qualify and certain that do not. The examples I listed earlier in this paragraph are generally examples of commands that change the encounter to a seizure and require at least reasonable suspicion of criminal activity. If the police officer looks into the vehicle, asks questions and the driver ignores the police officer, the officer cannot command the driver to exit the vehicle without a legal basis. At this stage, the police officer must be able to point to some facts suggesting a crime is being committed, which would be difficult to do in the DUI context if the window is up.

Police in Florida Cannot Download Black Box Data in Your Vehicle Without a Search Warrant

Published on: March 31, 2017 | by Lasnetski Gihon Law

Most people have heard of the “black box” or “event data recorder” after airplane crashes. It is a device that records information about the plane that helps investigators determine how and why a crash occurred. What many people may not know is that cars often have black box recorders as well. Most cars manufactured in the last few years come equipped with the black box recorder. The data on these devices can be used to determine the speed of a vehicle, steering and braking information and other data that can also help determine why a motor vehicle crash occurred.

The black box data could be useful to police in investigating certain crimes. For instance, that data could help the police investigate a DUI manslaughter case, a fleeing and eluding case or an aggravated battery with a motor vehicle case. However, the police cannot just go into a person’s vehicle and collect that data. The police might be able to seize a person’s vehicle if it is evidence of a crime. Alternatively, the police might take custody of a vehicle rather than leave it on the side of the road after arresting the driver. In these situations, the police are normally permitted to search the vehicle as part of a legal inventory search- a search of the vehicle to make sure nothing dangerous is in the vehicle and make sure the suspect’s property is inventoried and kept safe to return to the suspect when the case is finished.

The black box data are different. Collecting that data is more complicated than searching the vehicle and removing personal items for safekeeping. The key to whether the search warrant requirement is triggered is whether the suspect has a reasonable expectation of privacy in the area or thing to be searched. Florida courts have held that people have a reasonable expectation of privacy in their vehicles and the interior of their vehicles. Florida courts have also ruled that people have a reasonable expectation of privacy in electronic storage devices such as cell phones, Ipads and computers. A black box recorder falls into both of these categories. As a result, if the police want to obtain the data in these black box recorders that are relevant to a crash that involves criminal activity, the police will either need to get a search warrant for the data or get consent from the owner of the vehicle. Failure to do so will likely result in all of the evidence from the recorder being inadmissible in court.

Not All Questions Are Covered Under the Miranda Warnings

Published on: March 14, 2017 | by Lasnetski Gihon Law

In Florida and elsewhere, when a suspect is arrested, he/she has a constitutional right to remain silent and consult a lawyer before making any statements or making any important decisions about the case. In fact, for just about every defendant in a criminal case, this is exactly what a suspect or defendant should do. It is exceedingly rare for a person to make a statement to the police at that early stage, with such limited information and without the advice of a criminal defense lawyer, and it doesn’t do anything but hurt the defendant’s case.

As part of this right to remain silent and consult a criminal defense attorney, the police are required to read the Miranda warnings to a suspect who is in custody before any request to speak with him/her about the case. These warnings inform the suspect that he/she has a right to remain silent and a right to a criminal defense lawyer. If the suspect invokes those rights, the police cannot question the suspect about the case.

However, even when a suspect exercises his/her right to remain silent and requests a criminal defense attorney, the police can still ask certain questions about the suspect as part of the arrest and booking process. The police are still permitted to ask biographical and routine booking questions. For example, when the police arrest someone, they fill out reports and enter the suspect’s information into their system. They can ask questions relating to physical characteristics, age, address, date of birth, place of employment and similar identifying characteristics. The police cannot ask questions that are designed to elicit information about the case.

Police in Florida Must Read Your Miranda Rights if You Are in Custody and Under Interrogation

Published on: March 10, 2017 | by Lasnetski Gihon Law

Whether through books or TV shows or movies, most people in Florida have heard the Miranda warnings and understand that the police are supposed to read them to a suspect after he/she has been arrested. It is important that the police inform people of their constitutional rights upon their arrest. Of course, this includes the right to always remain silent when police want to ask questions or take a statement and the right to consult with a lawyer before a suspect makes any statement or makes any decisions about his/her case.

However, the police do not have to read a person the Miranda warnings in every encounter they have with suspects. The general rule is that the police are required to read Miranda warnings before any custodial interrogation. In other words, a suspect has to be in custody to trigger this requirement. Custody is generally defined as a situation where the suspect is not free to leave. Obviously, if a person is being handcuffed and arrested, he/she is in custody. However, it is less clear when the police confront a suspect to ask questions or bring the suspect to the police department to ask questions. The other requirement is that the police are conducting an interrogation. If the police approach a person and the person starts making statements on his/her own, that is obviously not a custodial interrogation that requires Miranda warnings. If a suspect voluntarily goes to the police station and starts talking to the police, that likely is not a custodial interrogation either. However, if any force or involuntary confinement is used and/or it is clear that the suspect cannot just stop and leave, that would be a custodial interrogation.

It is important to note that, whether an encounter with police is a custodial interrogation or obviously a consensual and casual interaction or something in between that is not so clear, a suspect or defendant always has the right to remain silent and request a lawyer before anything critical to the case happens. And in just about every situation, that is exactly what a suspect or defendant should do. Many, many cases get a whole lot worse for suspects and defendants when they make the decision to talk to the police without knowing all of the facts and issues about their case.

Police Officer in Florida Cannot Arrest a Suspect for a DUI the Officer Does Not Witness

Published on: March 7, 2017 | by Lasnetski Gihon Law

In Florida, most DUI (driving under the influence of alcohol or drugs) cases are the result of a police officer claiming to observe a suspect violating some traffic law while driving, after which the officer conducts a traffic stop and DUI investigation. Other times, which occur in the Jacksonville, Florida area from time to time, the police set up a DUI roadblock and check drivers as they pass through the checkpoint. In these cases, the police observe the suspect driving the vehicle, and if they can prove the driver was impaired from alcohol or drugs, the police observe all of the elements necessary to prove a DUI charge ad can move forward with a DUI arrest.

This is important because there is a law in Florida that essentially says the police cannot arrest a person for most misdemeanors unless the police actually observe the suspect commit the misdemeanor crime. Again, this usually is not an issue in DUI cases because most DUI cases result from traffic stops. But, there is a small subset of DUI cases where this can be an issue for a criminal defense lawyer to pursue. For instance, consider a case where a civilian or even a non-state law enforcement official observes a suspect driving while impaired and calls the local police to report it. When the police locates the DUI suspect, the suspect has already parked and exited the vehicle. The police officer might conduct a DUI investigation and determine that the suspect was impaired from alcohol or drugs, but the police officer cannot arrest the suspect for DUI. In this case, someone might have seen the suspect driving while impaired, but the police officer did not. If the police officer did not observe that element of the crime, the police officer cannot arrest the driver for DUI.

There are two exceptions to this rule. Local police officers who have authority to investigate such crimes can relay the required information to another police officer who can make an arrest. For instance, police officer A observes a suspect driving erratically and pulls the suspect over. Police officer B arrives to take over the DUI investigation and police officer A tells officer B what he observed. Officer B finishes the DUI investigation and arrests the driver. Fellow officers are considered interchangeable in this scenario. The other exception involves traffic crashes. A police officer who responds to just about any type of crash that involves an injury and/or any property damage can investigate the case for a potential DUI and make an arrest even if the police officer arrived after the crash and did not observe anyone driving. The state still must prove the DUI suspect was driving or in control of the vehicle, but the police do not need to have observed it for an arrest in these types of DUI cases.

A Judge in Florida Cannot Rely on a Defendant’s Subsequent Arrest When Imposing a Sentence

Published on: March 3, 2017 | by Lasnetski Gihon Law

After a person is convicted of a crime in Florida, whether as a result of a guilty or no contest plea or a jury trial, it is up to the judge to determine the defendant’s sentence. Of course, if the criminal defense lawyer and the prosecutor work out a deal as part of a guilty or no contest plea, the judge still has to agree to accept the deal, but judges will normally go along with a deal worked out by the two sides. Minimum mandatory penalties for some crimes in Florida can limit a judge’s discretion in sentencing. However, if a defendant enters a plea without a deal with the state or a person is found guilty at a trial, the judge will usually be the one to decide the defendant’s sentence without any limitations.

The sentence in such cases is usually determined at a sentencing hearing. This is a hearing at which both sides can present witnesses, evidence and arguments to convince the judge to sentence the defendant as they see fit. The parties can present a wide variety of information in aggravation or in mitigation to convince the judge of their position. The judge is permitted to consider many different facts and opinions when determining a defendant’s sentence.

However, some facts are not appropriate for consideration at sentencing. It is not uncommon for a sentencing hearing to take place several weeks, or even months, after a defendant enters a guilty or no contest plea or loses a trial. Events that occur in between can be considered by the judge, for better or worse. Examples of positive developments in between a plea and sentencing might be that the defendant obtained a new job or started a rehabilitation program. On the other hand, if a defendant fails to appear at his/her sentencing hearing, that will almost always result in a higher sentence once the defendant is arrested on a warrant.

In Florida a Second Refusal of a Valid Request for a DUI Breathalyzer Test is a Crime

Published on: February 28, 2017 | by Lasnetski Gihon Law

In Florida, when a police officer stops a driver and suspects that he/she is driving while impaired from alcohol or drugs, that police officer will go through the normal DUI investigation. That typically includes various questions about what the driver has been doing, where he/she has been and how much he/she has had to drink. It is important for everyone to understand that you have a right to refuse to answer such questions. In fact, it is usually a good idea to give your name, license, registration and insurance card and then request to speak to a lawyer. As most people should know by now, anything else you say can and will be used against you in a DUI case.

The next step in a DUI investigation is normally to ask the driver to exit the vehicle and submit to field sobriety tests. Again, it is usually a bad idea to perform these tests. First and foremost, these are completely subjective tests (i.e. if the police officer says you failed, then you failed). And these subjective tests are being conducted and graded by a person who already believes you are drunk. Also, if there is no video in the police car documenting the tests, your ability to defend your performance in court later on is severely impaired. Even if there is a video, the video will not catch certain critical parts of the testing, For instance, when the police officer conducts the HGN test where he asks you to follow the light with your eyes, he will say you failed, and the video will not be able to disprove that because it will not capture how you did on that particular test.

After the field sobriety tests, or your refusal to perform them, the officer will likely arrest you for DUI. You are taken to the jail and booked. Only after you are in the jail does the officer asks you if you want to blow in the breathalyzer. Given the timing, the first thing you need to understand is that the breathalyzer will not save you from an arrest. You have already been arrested. It is just another tool the police use to try to convict you of DUI. In Florida, when you obtain a driver’s license, you consent to blow into the breathalyzer as part of a lawful DUI investigation. However, you can still refuse that request. If you refuse a breathalyzer test as part of your first DUI, there are two primary repercussions. As long as the DUI arrest is valid, your driver’s license will be suspended for a year (rather than six months if you take the breathalyzer test). Secondly, if your DUI case goes to trial, the state can use the refusal against you in court and argue you refused the breathalzyer because you knew you would fail. Of course, you and your criminal defense lawyer can argue the many other reasons why you rightfully felt like you should not have taken the breathalyzer.

Lasnetski Gihon Law Researching Florida Medical Marijuana Licensure for Potential Client

Published on: February 24, 2017 | by Lasnetski Gihon Law

As readers of this blog know, we have written extensively on issues relating to marijuana and the legalization of marijuana. It is a particularly relevant topic these days as more states legalize marijuana either recreationally, or as Florida did in the 2016 election, for medicinal purposes. It is our belief that marijuana will ultimately be legal for all purposes in all states at some point. However, getting there is going to be a long and arduous process. Apparently, the election of Donald Trump and the appointment of Jeff Sessions as Attorney General will not do much to advance the legalization movement.

As stated, Florida did achieve a small victory in November as a majority of voters approved an initiative to legalize medical marijuana in Florida. I decided to write this article to give people a little better understanding of what that means in Florida and to alert people that Lasnetski Gihon Law is prepared to assist professionals who are seeking to enter the marijuana industry in Florida. As Colorado, Washington, Oregon and other states have shown in a short period of time, the marijuana industry is going to be tremendous.

So what new rights does the Florida medical marijuana law confer on qualified people in Florida? It allows people with certain medical conditions to obtain a certificate from a doctor that can be used to ultimately obtain marijuana to treat those conditions. The law does not allow just anyone with any medical problem or aches and pains to go to any doctor and request a certificate for medical marijuana. Only certain medical conditions qualify. Those include: ALS, cancer, HIV/AIDS, Crohn’s disease, epilepsy, glaucoma, multiple sclerosis, Parkinson’s disease and PTSD. As you can see, these are very serious medical conditions of which a patient must have a documented record to move forward with medical marijuana treatment.

You Can Be Convicted of Burglary in Florida Without Ever Entering a Residence or Building

Published on: February 14, 2017 | by Lasnetski Gihon Law

When most people think of the crime of burglary, they think it involves someone breaking into a home or other building and stealing something that is inside. In fact, in Florida the crime of burglary is much broader than that. First, it can involve just about any building, including vacant buildings, and it can also involve other structures like a car or a boat.

Next, a person does not have to steal something inside the conveyance to be guilty of burglary. If a person enters the conveyance with the intent to commit any number of crimes, that can be a burglary. Finally, it is not even necessary for the perpetrator to enter the structure. Putting a hand through a window can be sufficient for a burglary conviction.

In a recent burglary case south of Jacksonville, Florida, the defendants planned to burglarize a home and walked onto the porch in front of the home. They tried to get into the home, but they could not find a way in. Someone saw them and called the police. They were arrested as they were leaving the home and ultimately charged with burglary of a dwelling.

Police in Florida Generally Need a Search Warrant for a Blood Draw in DUI Cases But There Are Exceptions

Published on: February 10, 2017 | by Lasnetski Gihon Law

In alleged DUI cases that involve serious accidents, the police are often not able to perform their usual DUI investigations which include field sobriety tests and a breathalyzer test, if the suspect consents to them. If the suspect is in no condition to perform those tests due to injuries from the crash or is taken to the hospital, the police cannot perform the normal DUI investigation. If the police are able to develop probable cause that the suspect was driving while impaired from alcohol or drugs, there are ways for the police to continue investigating a DUI after a crash.

The police officer can go to the hospital and request that the driver submit to a blood draw. After the blood is taken from the DUI suspect, the police send it to the crime lab where it is tested for drug and alcohol content.

However, as a result of a United States Supreme Court case that was decided in 2013, the police cannot take a DUI suspect’s blood without consent from the suspect or a search warrant. The state used to be able to argue that they did not need a search warrant due to exigent circumstances inherent in a DUI case- that alcohol is constantly metabolizing in the blood and as time passes, getting an accurate blood alcohol reading becomes more difficult. The recent Supreme Court case rejected that argument. The general rule is that a blood draw is considered a search under the Constitution so the police need consent or a search warrant to obtain someone’s blood.