Jacksonville Criminal Lawyer Blog

Police in Florida Cannot Access Information in an Abandoned Cell Phone Without a Search Warrant

Published on: December 9, 2016 | by Lasnetski Gihon Law

In Florida and elsewhere, the general rule for searches and seizures is that the police cannot search a person’s property without a search warrant or specific consent from a person with the proper authority to give such consent. There are exceptions to that rule depending on the circumstances, but the general rule applies in most situations. This has been the law for a long period of time. However, there are new situations, and new technologies, that require a unique interpretation of search and seizure law. Cell phones are not exactly new, but they have created circumstances where the courts cannot necessarily rely on prior cases alone and need to interpret the Constitution to determine if searches and seizures are lawful. Additionally, the storage capacities and capabilities of cell phones are always improving so new search and seizure scenarios are common.

We have discussed cases where the police have made arrests and then sought to search a person’s cell phone without a warrant. These days, cell phones can contain all sorts of information that can incriminate a defendant, such as photographs, text messages, call records, internet searches, and a plethora of other data. These items can be critical in many different types of criminal cases.

The question remains: when can the police access the data contained in a suspect’s cell phone? In a case near Jacksonville, Florida, the police stopped a vehicle after running the tag and finding that the vehicle had been reported stolen. The suspect fled the vehicle on foot. The police officer did not catch the suspect, but he did find a cell phone that was left in the vehicle. The cell phone was protected with a password, but someone at the police department was later able to access the data in the phone. No search warrant was obtained to do this. Once inside the cell phone, the police were able to identify the suspect and his contact information. He was located and arrested for burglary of a conveyance.

Ambiguous Florida Weapons Law Results in Felony Arrest For Student Possessing a BB Gun in School

Published on: December 2, 2016 | by Lasnetski Gihon Law

In Florida, it is illegal for anyone to possess a “weapon” at school or a school-sponsored event without authorization. A violation of this criminal statute is a third degree felony that carries up to five years in prison. There are a variety of items that are considered “weapons” under the statute including razor blades and box cutters, in addition to the obvious weapons like guns and knives. There is also a separate Florida statute that adds other items to the definition of a “weapon” such as brass/metal knuckles, tear gas and slingshots. Whether other items are considered “weapons” under the statue is unclear. Pocket knives are specifically excluded from the definition of a “weapon”, but what is considered a pocket knife depends on its size and other characteristics. The obvious problem is that the Florida laws and statutory definitions do a poor job of telling students and parents what items are legal and what items could result in a felony charge.

In a recent weapons case near Jacksonville, Florida, school officials conducted a random search of students at a local public school. They removed the kids from the classroom, scanned them with a metal detector and searched each of them. They also searched their book bags and other belongings. They found a BB gun in the defendant’s book bag. The school officials said the BB gun looked and felt like a real gun. It was not loaded. The defendant was arrested for possession of a weapon on school property.

The criminal defense lawyer filed a motion to dismiss the charge since a BB gun is not a deadly weapon as referenced in the statute. That statute lists certain specific items that are considered weapons along with any other “deadly weapon.” BB guns are not specifically listed as “weapons” in the statute. Therefore, the criminal defense attorney argued that since the BB gun is not specifically mentioned as a “weapon” in the statute, and a BB gun certainly is not a “deadly weapon” as also mentioned in the statute, the defendant cannot be charged with possession of a weapon on school property for a BB gun.

Florida Uttering Forged Card Charge Did Not Apply to Gift Card

Published on: November 21, 2016 | by Lasnetski Gihon Law

In Florida, there are a variety of criminal statutes that deal with fraudulently using a credit card or altering a credit card to use it in an unauthorized manner. When a defendant allegedly violates one of these criminal statutes, it is up to the state to make sure they charge the appropriate crime. If they do not use the correct charge, the case might get thrown out.

For instance, in a case just south of Jacksonville, Florida, the defendant had apparently used altered gift cards to purchase items at a grocery store. The manager at the grocery store noticed that the gift cards had been altered and called the police. When the police arrived and arrested the suspect, they found more altered gift cards in his possession. The state charged the defendant under a Florida statute that deals with using an altered credit card to fraudulently obtain goods or services. The criminal defense attorney moved to dismiss the charges because the credit card statute does not apply to gift cards. Under the statute, the term “credit card” is specifically defined. The statute gives examples of different cards that apply. Each example refers to a card that is issued for the use of the cardholder. The “cardholder” is also defined under Florida law as the person or organization whose name is on the card and for whom the card was issued.

As most people know, gift cards generally are not issued for a specific user. They normally do not have the name of the recipient printed on the card. Therefore, because the Florida criminal statute specifically refers to credit cards which are defined a certain way, and gift cards do not fall under the definition of credit cards, the criminal defense attorney argued that the defendant could not be guilty of that crime. The court agreed, and the case was dismissed.

Florida Criminal Statute of Limitations is Delayed When Defendant is Out of State

Published on: November 18, 2016 | by Lasnetski Gihon Law

In Florida, the state has a certain period of time from the date a crime has occurred to prosecute the defendant. Like other states, Florida has statutes of limitation which set out a number of years within which the state must prosecute a person for committing certain crimes. The period of time provided in the statute of limitations depends on the nature of the crime. Two years is common for misdemeanor crimes in Florida, and four to five years is more common for felony crimes. For instance, for a felony, if the state does not prosecute a defendant within five years of the date of the crime, the criminal defense lawyer can file a motion to dismiss the case because the statute of limitations has run. This situation commonly occurs when the police believe a suspect has committed a crime and issue a warrant or capias for that person. However, the suspect is not caught and brought to court for several years, beyond the time period indicated in the statute of limitations. In that case, the criminal defense attorney may be able to have the case dismissed.

However, there are exceptions to the statute of limitations. The Florida statute itself is fairly ambiguous, but a recent Florida Supreme Court case attempted to clarify one of the confusing parts of the statute. In this case, the defendant allegedly committed the crime in 2009, and a warrant was issued for his arrest. The statute of limitations for the crime was three years. The state did not arrest and charge the defendant until later in 2012, more than three years after the crime was committed. The criminal defense lawyer filed a motion to dismiss the case because the state was attempting to prosecute the defendant more than three years after the crime occurred.

The state argued that the statue of limitations was tolled, or delayed, because the suspect was continuously out of state for part of those three years, as the statue specifically mentions a defendant being out of state as an exception to the running of the limitation period. The criminal defense attorney argued that the state has to show that they diligently searched for the defendant in order to avail itself of the benefit of the tolling of the statute. The statute is not clear as to how these two factors interact with each other. The question is whether the state merely has to show that the defendant was out of state for a continuous period, which tolls the statute of limitations during that time, or whether the state also has to prove they diligently searched for the defendant and his/her absence thwarted their prosecution of the defendant.

Florida Police Officer Can Detain and Arrest Suspect for DUI While in Private Parking Garage Under Certain Circumstances

Published on: November 10, 2016 | by Lasnetski Gihon Law

Some people in Florida believe they are only at risk of a DUI arrest if they are caught driving on the public roads by a police officer while impaired from alcohol or drugs. That is not true. A person does not even need to be driving to be arrested and convicted of DUI. The Florida driving under the influence statute confers criminal liability on anyone who is driving while impaired from alcohol or drugs or in actual physical control of a vehicle while impaired from alcohol or drugs. We have dealt with many cases where a person was arrested for DUI while resting or sleeping in a vehicle that is not even running. The state can move forward with a DUI case in that situation if the suspect had the keys to the vehicle and it was capable of being driven, even if the keys were not in the ignition at the time.

Additionally, a police officer can initiate a DUI investigation when the suspect is on private property, as opposed to driving on the public roadway, in some situations. In a recent DUI case just south of Jacksonville, Florida, witnesses observed the suspect crash through the barricade at the entrance to a private parking garage and proceed to park inside. The witnesses called the police, and a police officer found the suspect in the parking garage. He initiated a DUI investigation and ultimately arrested him for DUI. The criminal defense lawyer moved to dismiss the DUI charges because the incident took place in a private garage.

Florida law is not exactly clear as to a police officer’s authorization to detain, investigate and arrest someone for DUI inside a private garage or other private property. It is certainly possible that if all of the events of this incident occurred within the confines of the private property, the police officer would not be authorized to conduct a DUI investigation. However, in this case, the defendant crashed through the barricades at the front of the property from a public roadway and proceeded into the private garage. Additionally, the driver did not pay to enter private garage as patrons were supposed to if they wanted to lawfully use the garage. The court found that this was sufficient to allow the police officer to conduct a DUI investigation and ultimately make the DUI arrest. Had the defendant entered the garage appropriately and shown signs of impairment once inside, perhaps by hitting a parked vehicle inside, it is not clear if the police officer would have been permitted to conduct a DUI investigation at that point.

The War on Drugs Sometimes Causes Police Officers to Forget About the Constitution

Published on: November 4, 2016 | by Lasnetski Gihon Law

Police officers like marijuana arrests because they are easy- they don’t require much work, they don’t require much thought, and they don’t require much, if any, investigation. This is one of many reasons why dealing with the war on drugs that primarily serves to waste money and increase the size of government is so difficult Despite the government’s desire to continue the war on drugs, it is not an excuse to disregard the Constitution and the right to be free from unreasonable searches and seizures.

In a recent possession of marijuana case near Jacksonville, Florida, the suspect was riding his bicycle at night without proper lighting. There was no evidence of any criminal activity, but riding a bike without proper lighting is a traffic violation. Based on this lighting malfeasance, two police officers saw fit to stop their vehicle and detain the suspect. The officers asked the suspect for his ID, and he opened his bookbag to retrieve it. The suspect tried to shield the officers from seeing into the bookbag when he obtained his ID but did not act suspiciously. Based on this, the officers handcuffed the suspect and seized the bookbag. The officer then claimed to smell marijuana, searched the bookbag and found small bags of marijuana inside. The suspect was arrested for possession of marijuana.

The criminal defense lawyer filed a motion to suppress the marijuana evidence. The police do have a right to stop someone for committing a traffic violation, even one as minor as this one. However, they can only stop the person for the purpose of writing a ticket for the violation. They cannot detain the person for any longer period of time or seize the person by handcuffing him unless there is specific evidence of criminal activity. In this case, there was none. The suspect complied with the officer and obtained his identification from his bag. If the suspect did so in a way the officer did not like, that is not a specific indicator of criminal activity. If the police officer claimed he searched the bag because it could have had a weapon or drugs without specific evidence, then any police officer could search anyone with a bag, a car, pockets, etc and claim a suspect could have something illegal in a place the officer cannot see. That is not how the Constitution works.

In Florida, Statements Made to a Police Officer Investigating an Auto Accident Are Not Generally Admissible in Court

Published on: October 28, 2016 | by Lasnetski Gihon Law

In Florida, we have a law commonly known as the accident report privilege. In all crashes that involve an injury or significant property damage, the police officer responding to the crash must prepare a crash report that documents information about the crash and the people involved. When a person is involved in an auto accident in Florida, that person must remain at the scene and provide certain information to the responding officer. One can see how a duty to remain at the scene of the crash and provide information to the police might conflict with a person’s right to remain silent if there might be criminal implications to the crash. Some crashes obviously involve criminal activity, such as driving under the influence of alcohol or drugs, hit and run and/or driving with a suspended license. People have a right to remain silent rather than make incriminating statements to the police.

In order to reconcile this conflict, the Florida accident report privilege provides that the state cannot use in court as evidence a person’s statement made to the police for the purpose of completing the crash report. In other words, if a driver makes an incriminating statement to the police officer while he/she is conducting a crash investigation, the state cannot call the police officer to repeat that statement in court in the state’s case.

However, there are exceptions. First, the state might be able to use a statement made by the driver for the purpose of completing the crash report as impeachment. If at trial the defendant waives his/her right to remain silent and testifies in court about the crash, the state or the opposing party may use the statement made to the police at the time of the crash against the driver if it is inconsistent with what the driver is saying in court. Another exception to the Florida accident report privilege exists where the driver does not follow the law after the crash. For instance, if the driver is involved in a crash and the flees the scene, he/she loses the benefit of the accident report privilege. Florida cases have ruled that where a driver is involved in an accident that results in a death and then leaves the scene of the crash (which is a serious felony crime in Florida), the driver loses the benefit of the accident report privilege if he/she gives a statement to the police once they locate the driver.

The State Can Comment on a Defendant Remaining Silent in Some Instances

Published on: October 24, 2016 | by Lasnetski Gihon Law

The Constitution provides that no person can be compelled to make any incriminating statements against him/herself. This means that when the police believe a person was involved in a crime and want to ask him/her questions about it, that person has a right to refuse to talk to the police. Usually, that is the smart thing to do. If that person is later arrested and charged with a crime, the state cannot use the fact that the person decided to remain silent against him/her in court.

This Fifth Amendment right to remain silent also means that a defendant does not have any obligation to testify at a criminal trial. The defendant can always remain silent at the trial, and the state cannot make any negative comment about the defendant failing to provide his/her side of the story in court.

The Fifth Amendment does not protect a defendant in all situations when it comes to a person’s silence or comments about a potential crime. For instances, the state can comment about a defendant’s silence after the defendant has waived his/her right to remain silent.

Florida Man Arrested for Firearm and Marijuana Charges After Firefighter Spots Illegal Items in his Garage

Published on: October 21, 2016 | by Lasnetski Gihon Law

In Florida, a person enjoys special protection from illegal searches and seizures in his/her home or other residence. At a minimum, this means that police officers and other agents of the state cannot just come into a person’s residence looking for evidence of criminal activity without a search warrant or valid consent from someone who is authorized to provide consent. However, there are exceptions to this rule that would allow a police officer or other state agent to come into a person’s home. If they find illegal items such as guns or drugs once they are legally inside the residence, a criminal investigation can initiate.

In a recent case south of Jacksonville, Florida, firefighters and police officers responded to a fire in the suspect’s residence. Police and firefighters are permitted to enter someone’s home without consent or a search warrant to deal with an emergency health or hazard issue like a fire. Of course, they must do so only for the purpose of assisting with the emergency and not for the purpose of looking for evidence of a crime. However, if they see evidence of a crime while in one’s home for other purposes, they are not required to ignore it. In this case, the firefighters entered and exited the house through the garage. While doing so, they saw drug paraphernalia on a table in plain view in the garage. After seeing the drug paraphernalia, the firefighters went back inside to make sure there was no additional fire threat and saw marijuana in a closet. They informed the police who detained the defendant. The police officers requested consent to search the house from the defendant. When the police searched the house, they found more marijuana, guns and drug paraphernalia. The defendant was arrested for possession of a firearm by a convicted felon and possession of marijuana with the intent to distribute.

The criminal defense lawyer filed a motion to suppress the evidence of the marijuana, guns and drug paraphernalia arguing that the police did not have a legal basis (a search warrant or valid consent before the defendant was detained) to search the house. The court found that the search and seizure related to the marijuana and drug paraphernalia were legitimate. The firefighters had a legal basis to be inside the house putting out the fire, and they saw the marijuana and drug paraphernalia in plain view while legally in the house. They had a right to inform the police about those items. On the other hand, the guns and items found after the defendant was detained and the police searched the house were suppressed. At that point, the police were obligated to get a search warrant to search the house for additional evidence. They never attempted to do so. As a result, the defendant could be charged with possession of marijuana with intent to distribute and possession of drug paraphernalia, but the state could not go forward with any charges related to the guns due to the illegal search.

In Florida Grand Theft Case, the State Must Prove the Value of the Item Stolen

Published on: October 17, 2016 | by Lasnetski Gihon Law

In Florida, a theft is a felony offense, known as grand theft, if the value of the property stolen was $300 or more. If the value of the property is significantly higher, the offense can be a second degree felony or a first degree felony depending on the circumstances. If the value of the property is less than $300, the offense is a misdemeanor. Therefore, when someone commits a theft, the level of the crime and how serious it is depends heavily on the value of the property stolen. It is up to the state to prove that value beyond a reasonable doubt. If the state cannot prove the value of the property is $300 or more, the offense will be a misdemeanor even if it seems obvious that the property is more valuable.

For example, in a recent theft case near Jacksonville, Florida, the defendant stole some used fencing material from a business. The fencing material was old and had not been in use recently, so the business did not know its value or what they paid for it. At the trial, the state did not present any evidence of the market value of the fencing but did have someone from a hardware store testify that the replacement value of the fencing was $450. Based on that testimony, the defendant was convicted of grand theft.

The criminal defense attorney appealed the grand theft conviction and won. According to the Florida theft statute, the state must prove beyond a reasonable doubt what the market value of the stolen property was at the time it was stolen. If for some legitimate reason the state cannot determine the market value at the time of the theft, the state can rely on the replacement value of the property near the time of the offense. In this case, the state did not attempt to prove the market value of the stolen property. The state also did not establish why they were unable to prove the market value. Without such proof of why they could not determine market value, the state was not permitted to use replacement value instead. Additionally, the witness who testified about replacement value did not adequately prove replacement value. The evidence of replacement value has to relate to similar property around the time of the theft. The state must have some evidence of the condition of the property when it was stolen and/or how new the property was. For instance, if used fencing material was stolen some time ago, the state cannot just being in a witness to say what new fencing would cost today. The state must offer evidence of what used fencing materials would cost similar to what was stolen.