Jacksonville Criminal Lawyer Blog

House of Representatives Panel Voted to Pass a New Email Privacy Bill

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

As technology advances with computers and cell phones and newer forms of communication, old laws and cases do not always properly address how our privacy rights might be affected, and how the government can look at or seize our data in criminal cases. We have written previous articles about when and how the police can obtain data on cell phones before and after an arrest. In many cases, the state has broad authority to access this information because search and seizure case law does not properly characterize the data and the methods used to acquire the data.

Emails are another form of data that are often the coveted by police officers looking to investigate criminal activity quickly and without the checks and balances found in search and seizure law. However, the House of Representatives recently took steps to pass a law that would protect old emails. An old law that people probably are not aware of allowed the government to look at old, private emails if they are more than six months old with only a subpoena, which does not involve much, if any, judicial oversight. It’s hard to believe that the government practically had free reign to look at any of your old emails as long as a relatively short period of time has passed. This was an obsolete law that was written before emailing and texting became common forms of communication. However, this new law would require the government to get a warrant signed by a judge to see any emails, text messages, electronic photographs and instant messages no matter how old they are. The arbitrary six month waiting period to avoid the warrant requirement would be eliminated.

As much of a no brainer as this new law seems to be, keep in mind that this proposed law still needs to be voted on by the full House of Representatives and then move through the normal channels from there. So, while it seems like an obvious law to fix a blatant violation of the constitutional right to privacy, depending on this House of Representatives to do anything helpful is a shaky proposition. Hopefully, this will be an exception, and it will become the law quickly. In the meantime, the government can still read any of your emails and text messages whenever they want and without a warrant as long as they are more than six months old.

Florida Defendant Properly Charged with Driving With a Suspended License on Gas Powered Bicycle

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

In Florida, most people are aware that if your driver’s license becomes suspended for any reason, it is a crime to drive a vehicle. It is usually a misdemeanor crime that is not treated too harshly in court. However, multiple driving with a suspended license arrests and convictions can prolong the length of the suspension which can lead to more driving with a suspended license arrests and more suspensions, and so on. Also, if you get a few driving with a suspended license convictions, you can be charged with a felony for the next one, and people often get jail time or even prison time for these charges in felony court.

In a driving with a suspended license case just south of Jacksonville, Florida, a defendant was arrested while riding a gas powered bicycle after his driver’s license had been suspended. The criminal defense lawyer filed a motion to dismiss the charge. One can only be convicted of driving with a suspended license if he/she is operating a “motor vehicle”. The criminal defense attorney properly established that, under Florida law, a “motor vehicle” excludes vehicles moved solely by human power and also motorized bicycles and wheelchairs.

The prosecutor disagreed arguing that this gas powered bicycle is different from a motorized bicycle under Florida law. A separate Florida statute defines a “motorized bicycle” as one that has an “electric helper motor” that cannot travel more than 20 miles per hour. The police officer said the defendant was traveling in excess of 30 miles per hour.

Florida Murder Defendant Cannot Use Stand Your Ground Law When He Sought Out Conflict With Victim

Published on: April 15, 2016 | by Lasnetski Gihon Law

The Stand Your Ground law in Florida is a much publicized area of Florida criminal law that addresses when a defendant can gain immunity for using force and causing death or serious injury in self defense. It is not available to every defendant who is charged with a serious violent crime, but it can be a very helpful tool when a defendant is eligible to assert the Stand Your Ground law in Florida.

A recent murder case south of Jacksonville, Florida illustrates a situation where a defendant was not allowed to assert the Stand Your Ground law. As an initial matter, a defendant charged with a violent crime can only use the Stand Your Ground law in Florida if he/she was facing an imminent threat of death or serious injury which prompted him/her to use force. “Imminent” under Florida law is understood to mean something that is about to happen, not something that is expected to, or might, happen some time in the future. In this case, the defendant and his co-worker had a conflict at work. The victim told the defendant that after work, when he sees the defendant, he is going to stab him. Thereafter, the defendant armed himself with a knife and confronted the victim. The two got into a fight, and the defendant stabbed the victim, killing him.

The criminal defense lawyer for the defendant argued that the defendant stabbed the victim in self defense as he was legitimately scared that the victim would stab him, as he said he would earlier in the day.

Landlords Can No Longer Ban Tenants Based Solely on a Prior Criminal Record

Published on: April 12, 2016 | by Lasnetski Gihon Law

As criminal defense lawyers in Jacksonville, Florida, we receive many calls from people who had a criminal case in their past and are suffering the effects of it many years later. They are finding it difficult to get a job or to get into school or even to rent an apartment. For these people, we can help by sealing or expunging their prior criminal charge, if they are eligible. However, the rules for sealing or expunging a criminal charge in Florida are fairly strict, and many people are not eligible. if you have a criminal record and want to know if you are eligible to have a prior criminal case sealed or expunged, feel free to call us with questions.

It is one thing to have to disclose a prior criminal record on an employment application (most people expect that), but a criminal record often comes up when someone is trying to rent a house or apartment. Prospective tenants do get rejected based on criminal records, even if the prior criminal charge was minor and/or occurred many years ago. The federal government says this practice violates the law. The United States Department of Housing and Urban Development has issued a statement indicating that is is illegal for landlords to reject a tenant applicant based solely on an arrest record or prior conviction(s). This practice violates fair housing laws when a landlord does not consider how serous the prior crime(s) is and whether the applicant will have a negative impact on other tenants. Obviously, people with minor criminal records and people who have not had any trouble with the law in many years are less likely to be a problem to other tenants. Those individuals should have their applications for housing properly considered just like anyone else without a criminal record. To deny the application for anyone with a criminal record violates fair housing laws.

Florida Department of Corrections Officer Convicted for Allowing Prison Fight

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

On television shows, it is not uncommon to see prison guards helping inmates do things they should not do. Hopefully, this is something that happens more on TV than in real life. However, there are cases where prison and jail guards help inmates smuggle drugs and other contraband into the prison and facilitate fights between inmates. There was also a well publicized case from New York a year or two ago where a prison guard helped some dangerous inmates escape a maximum security prison.

In a case near Jacksonville, Florida, a prison guard was charged with culpable negligence, official misconduct and accessory after the fact for enabling an inmate to attack another inmate. In this case, the corrections officer allowed one of the more dangerous inmates to leave his cell without handcuffs, enter the cell of the victim and close the cell door. The attacker then stabbed the victim. The officer then mopped up the blood in the victim’s cell. The problem for the corrections officer is that another inmate observed the entire incident including the officer allowing the attacker to move freely through opened doors in the prison. The other problem is that the inmate witness was on the phone describing the incident as it occurred, and all such calls from the prison are recorded.

The prosecution admitted the evidence of the recorded phone call describing the officer’s actions and the attack during the trial. The criminal defense lawyer argued that the recorded phone call was inadmissible hearsay and should not be admitted during the trial. The court disagreed and held that the recorded phone call fell under an exception to the hearsay rule which involves people describing observed events as they occur. The law finds that unplanned statements describing an event that are made as the event is occurring are typically reliable. Additionally, the recorded phone call was not “testimonial” as it was spontaneous and not a statement given for use later at trial. Therefore, the recorded phone call was admissible to essentially seal the conviction of this corrections officer.

Can a Passenger of a Vehicle Leave the Scene of a Traffic Stop in Florida?

Published on: April 6, 2016 | by Lasnetski Gihon Law

In Florida, the police have a right to stop a person driving a vehicle if the driver commits a traffic violation and detain that driver for a relatively short period of time to write a traffic citation. If during that time the police officer develops reasonable suspicion that the driver is committing a crime, the police officer can detain the driver temporarily while the police officer investigates the criminal activity. This is how many driving under the influence of alcohol or drugs (DUI) cases start. However, the right to detain a driver is limited. Once the traffic ticket is written, if there is no reason to further detain the driver, the driver is free to leave. If the police officer does not develops reasonable suspicion of criminal activity independent of the traffic violation, he/she must let the driver leave.

Does this same concept apply to a passenger in the vehicle in Florida? Passengers can obviously be stopped for traffic violations by virtue of being in the vehicle. But, is the passenger free to leave once the vehicle is stopped? In a recent possession of cocaine and tampering with evidence case just south of Jacksonville, Florida, a driver was stopped for having an improper tag and not wearing his seat belt. The passenger immediately exited the vehicle and tried to leave the scene. The police officer told him to get back in the vehicle. The police officer then saw a bag of cocaine in the passenger side of the vehicle, and the passenger was arrested for possession of cocaine.

The criminal defense lawyer filed a motion to suppress the evidence of the cocaine because the passenger was improperly detained when the police officer did not allow him to leave. Since the passenger did not violate a traffic law and there was no evidence he was involved in any criminal activity, he should have been free to leave. The court disagreed. Essentially, the court looked at the case from an officer safety perspective. The court weighed the passenger’s right to be free from an unreasonable search and seizure with the concern for the safety of an officer. The court found that the officer safety issue prevailed. The court noted that a passenger fleeing or exiting a traffic stop could cause a risk of harm to a police officer who would have a difficult time focusing on multiple people doing different things. Due to the inherent risk in this scenario, the officer is allowed to detain the driver and any and all passengers in a vehicle during a traffic stop while legitimately writing the ticket and/or investigating criminal activity. Once the time for those activities is finished, everyone should be free to leave.

United States Supreme Court Limits Government’s Ability to Freeze Assets of Defendants Upon Arrest

Published on: March 31, 2016 | by Lasnetski Gihon Law

A practice of the government, normally the federal government but sometimes state and local law enforcement as well, many people may not be aware of is the freezing of a defendant’s assets before he/she has ever been convicted of a crime. For instance, a law enforcement agency might contact the financial institution of a suspect and have his/her accounts frozen in conjunction with an arrest. Of course, we all know the Constitution provides that a person is innocent until proven guilty. Therefore, at the arrest stage, everyone is innocent under the law. However, the government is still allowed to freeze a person’s assets based on a presumption of guilt rather than the Constitutionally mandated presumption of innocence.

More concerning is the fact that law enforcement may not just seize bank accounts or assets that they believe are directly linked to the crime. They often will seize any and all accounts and assets of a defendant without regard to whether they can prove those assets are related to, or proceeds of, a qualifying crime.

This practice obviously has several very significant and negative ramifications for a defendant. If the defendant cannot access his/her assets, he/she may not be able to pay bills, operate a business if business accounts are frozen, hire a criminal defense lawyer to develop a proper defense to the criminal charges or raise the money necessary to bond out of jail. Of course, the government is not going to care about these problems even though, again, the Constitution tells us we are dealing with an innocent person at that stage in the process.

United States Supreme Court Finds Florida’s Death Penatly Procedure Unconstitutional, Not the Death Penalty Itself

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

People in Florida may have seen news stories recently regarding Florida’s death penalty and a decision by the United States Supreme Court calling it into question. As an initial matter, Florida has the death penalty as an option for certain crimes. The recent United States Supreme Court case (Hurst v. Florida, 136 S. Ct. 616 (2016)) did not find the Florida death penalty unconstitutional, but it did find the death penalty “scheme” unconstitutional.

The Sixth Amendment to the Constitution guarantees, among other things, a criminal defendant the right to have a trial by jury. The problem with the Florida death penalty procedure is that the Florida statute allows a judge to make certain findings that a defendant is eligible for the death penalty. The Supreme Court held that the Sixth Amendment requires a jury to make those findings rather than a judge. A recommendation by the jury to the judge who ultimately makes the death penalty findings is not sufficient to satisfy the Sixth Amendment right to a trial by jury. The Court ruled that a jury, not a judge, must make each finding that is necessary to impose the death penalty in a Florida criminal case.

So, what that decision does is invalidate the process by which Florida imposes the death penalty. As stated, it does not mean Florida cannot impose the death penalty; it just means that Florida needs to get its death penalty procedure in line with the Constitution by relying on the jury rather than the judge. In the meantime, the Florida legislature has passed new laws that presumably bring the Florida death penalty procedure in conformity with the Constitution.

it is Illegal in Florida to Audio Record Someone Without Consent and Disclose the Recording

Published on: March 14, 2016 | by Lasnetski Gihon Law

States have different laws dealing with whether you can record a person’s oral communications and disclose it to the police or use it as evidence in court. Some states allow such a recording as long as just one party to the discussion agrees, even if the consenting party is also the party recording the conversation. In Florida, it is illegal to record an oral communication unless the people communicating know of the recording and consent. Therefore, in Florida, you cannot secretly record a private conversation with another person and then disclose it or use it in court.

There are exceptions to this rule. As discussed, consent is one of them. It is not uncommon to have a phone conversation with a business and be told that they are recording the conversation. In that case, the recording is legal, and the conversation could be used later in court. The rule about recording private communications would seem to be more important these days as just about every cell phone now can also be used as a recording device. People need to be aware that the things they say could be recorded and later used against them. Of course, this Florida law is supposed to offer some protection by requiring someone who wants to record a conversation to notify the other person and get the proper consent.

However, not all oral communications are subject to this legal protection. Under Florida law, an “oral communication” is considered a communication that is made with the expectation that it would remain private and not be recorded or heard publicly. In other words, if you are having a conversation on a crowded bus, it can be recorded without your knowledge and consent because it is obviously not a private conversation. On the other hand, if you are having a conversation with another person in your home or office, without other people around, it would likely be considered private and could not be recorded without your consent.

Florida Student Suspended From School Convicted of Trespass for Being on School Grounds

Published on: March 5, 2016 | by Lasnetski Gihon Law

In Florida, any person who goes onto property without authorization, or after having been warned not to be on the property, may be subject to a trespass charge. Trespass is usually a misdemeanor in Florida, however it can be a felony if the trespasser is armed with a gun or other dangerous weapon. Florida also has a special trespass statute for schools. The Florida school trespass statute deals with anyone who has no business being on school grounds and any student who has been suspended or expelled. A person who has been suspended who goes back to the school for some reason, without authorization, can be arrested for trespass.

Some schools take this statute perhaps too seriously. In a school trespass case near Jacksonville, Florida, a middle school student was sent to the principal’s office for unruly behavior. The principal suspended the student immediately and told him to wait in the office until his mother came to pick him up. The student left the office at some point to hang out in the school courtyard. When school officials saw the student in the courtyard, police were called and he was arrested for trespass.

The criminal defense lawyer filed a motion to dismiss the trespass charge. The defense attorney argued that the student could not be guilty of trespass because he was authorized to be on school property, in the office, until his mother arrived. The court disagreed. A property owner can limit access to the property to certain places on the property. If the person violates that limited access, he can be properly arrested for trespass.