Jacksonville Criminal Lawyer Blog

Can the Police in Florida Search a Suspicious Package Sent Through the Mail?

Published on: January 16, 2016 | by Lasnetski Gihon Law

Every now and then, as criminal defense lawyers in Jacksonville, Florida, we get possession of drug or drug trafficking cases that involve someone sending a package containing drugs through the mail. Sometimes, the package of illegal drugs is actually addressed to a specific person. Other times, the drug package is addressed anonymously (i.e. to “Resident”) or addressed to a fake person. A question often arises as to if and when the police are allowed to open the package and search it. Sometimes, someone at the mail facility notices that the package is suspicious and contacts the police. Other times, the police might have officers at the facility looking for specific packages. Drug packages can be suspicious based on how they are addressed, where they are from and how they are packaged.

A possession of marijuana case near Jacksonville, Florida involved a box of marijuana that was sent to a friend of the defendant through the United States Post Office. The package came from California which is one of the suspicious factors the police look for. The package was sent to an apartment, but the name on the package did not match anyone who was listed as a resident at the apartment complex. That was another red flag. The renter of the apartment, a friend of the defendant’s, accepted the package and signed for it in the name of the person listed on the package, which was not her true name. The police were involved with the delivery of the marijuana package and confronted the woman about it. She said she was accepting the package for a friend. She then gave the police consent to open it and search it. The police found a couple of pounds of marijuana in the package. The woman then texted the defendant and told him the package was ready for him to retrieve. When he arrived, he was arrested for conspiracy to possess marijuana.

There were a few search and seizure issues involved in this case. The criminal defense attorney for the defendant filed a motion to suppress the marijuana evidence arguing that since the package did not belong to the woman, she did not have the legal authority to give the police consent to open it. Generally, people do not have the legal authority to give consent to search things that do not belong to them. In such cases, the police would need to get consent from the owner of the property or get a valid search warrant for the package.

Can the Police in Florida Search My Garbage and Other Items I Throw Away?

Published on: January 13, 2016 | by Lasnetski Gihon Law

In Florida, the police are limited in what and when they can search items that belong to you. Obvious examples include your house, your vehicle and your person. The police are not permitted to search any of those things unless they have a search warrant, they have consent from someone authorized to give consent to search or in other limited circumstances. A criminal defense lawyer can file a motion to suppress evidence that is obtained as a result of an illegal search in a criminal case and get it thrown out of court.

But what if the police want to search something that used to belong to you but has been abandoned or thrown away? Especially in drug cases, the police will often search a person’s trash without consent or a search warrant. The police will often look for evidence of drug activity like drug packaging materials or materials used to make drugs like in Methamphetamine cases.

In a recent criminal case near Jacksonville, Florida, the police received a call that the suspect placed a suspicious box in a trash can outside of his home. The police arrived and found the box in the trash can, which was in the street a couple hundred feet from the home. The police asked people in the area, and no one claimed ownership of the box. The police took the box to their police station and x-rayed it. They saw that it had a gun inside. When they opened the box, they found the gun and cocaine. The suspect who was identified as having placed the box in the trashcan was arrested for possession of cocaine and possession of a firearm by a convicted felon.

When Can a Judge Hold a Lawyer in Contempt and Place Him/Her in Custody in Florida?

Published on: January 7, 2016 | by Lasnetski Gihon Law

It does not happen often, and I have only seen one case of a Jacksonville criminal defense lawyer being held in contempt, but a judge does have a right to hold a lawyer in contempt and send him/her to jail for a period of time for certain conduct in Florida. Of course, this does not just apply to criminal defense attorneys; it can apply to any lawyer that has to appear before a judge in any case.

There are two types of contempt proceedings: direct contempt and indirect contempt. Direct contempt involves improper conduct by a lawyer that is done in the presence of the judge so that the judge sees or hears it. An obvious example would be if the judge orders the lawyer to do something in court and the lawyer refuses to do it in court. Disruptive behavior in court can also be the basis for direct contempt. The other kind of contempt is indirect contempt. That involves the violation of a court order outside of the presence of the judge. For instance, if the judge orders the attorney to file a pleading and the lawyer intentionally fails to do so, that could be indirect contempt. A lawyer can go to jail for a contempt violation.

In a recent case near Jacksonville, Florida, a criminal defense lawyer was found in direct contempt and ordered to go to jail for a period of time. However, the judge abused his power over the criminal defense attorney. Apparently, the criminal defense lawyer thought she was finished for the day and had a couple of drinks at lunch. As it turned out, she had a plea hearing later that day. She went to the plea hearing, and someone told the judge that the criminal defense attorney smelled of alcohol. The judge ordered her to submit to a breathalyzer, and she blew a 0.085, which is over the legal limit for a DUI in Florida. The judge ordered her to be placed in jail until she blew under a 0.08 on the breathalyzer. Ultimately, a direct contempt hearing was scheduled, and the judge found her in contempt for appearing in court while impaired from alcohol and sentenced her to six months on probation.

To Use the Stand Your Ground Law in Florida, the Force Used Must Be Reasonable

Published on: December 25, 2015 | by Lasnetski Gihon Law

In Florida, a defendant charged with a crime of violence may be allowed to use the law commonly referred to as the Stand Your Ground Law to avoid prosecution for an alleged crime. The immunity aspect of this law is critical as it works differently than a normal defense. Essentially, if the criminal defense lawyer believes the Stand Your Ground Law applies, he/she can file a motion to have the case dismissed. A hearing is held, and the state has to present evidence establishing the defendant’s use of force was not reasonable under the law. The defense can present evidence showing the defendant’s use of force was reasonable. At the end of the hearing, if the judge sides with the defendant, the charge is dismissed. If the judge sides with the state, the case moves forward, but the defendant can still use a self-defense strategy at trial, and the question of guilt will be decided by the jury.

A person can successfully use the Stand Your Ground Law in Florida if he/she uses force that is reasonably necessary to prevent imminent death or bodily harm or prevent a forcible felony. In plain terms, if someone is about to cause you serious harm, you can strike that person first. But, there are limits. The harm by the other person has to be imminent (not some future threat), and it has to be a threat of serious harm. Additionally, the defendant cannot be the one who instigates the violence.

Going back to the reasonable requirement, a mild threat of violence is not sufficient to invoke the Stand Your Ground Law. For instance, if someone is threatening you with a gun, knife, baseball bat or other weapon that can clearly cause death or serious injury, you would likely be justified in using deadly force against that person to prevent being victimized first. However, if the person is approaching you with something that is not a deadly weapon, such as his hands or a stick, that would not likely be a legitimate reason to use deadly force. In the latter situation, if you use deadly force against the person, there is a good chance a Stand Your Ground motion would fail, and you would be facing serious felony charges.

Does the Legalization of Marijuana Increase Marijuana Use Among Teens?

Published on: December 22, 2015 | by Lasnetski Gihon Law

In a word, no. The University of Michigan conducts an annual survey regarding drug use among teenagers. The special interests against marijuana legalization, i.e. pharmaceutical companies that want people using their processed drugs rather than the naturally growing marijuana plant, along with the politicians to whom those special interests pay a lot of money, would have us believe that if we legalize marijuana, teenagers and everyone else will be smoking marijuana for breakfast, lunch and dinner. However, this survey (and other studies) show us that is not the case. The survey indicated that there was no significant increase in marijuana use in the states where it is now legal. In fact, after rising for several years, marijuana use has remained fairly steady since 2010, according to the annual surveys.

As most people know, marijuana is now legal in Colorado, Oregon, Alaska, Washington and Washington, DC. Marijuana use among teenagers stabilized before marijuana legalization and has remained stable since. Interestingly, the percentage of people who view marijuana as a serious health risk has declined dramatically. While it is good to see a rational view of marijuana, it still has not increased the number of users.

One other predictable and favorable consequence of marijuana legalization: teen use of actually harmful substances like alcohol, cigarettes, ecstasy and synthetic marijuana is down.

A Property Owner in Florida May Not Have a Right to Privacy in Leased Premises

Published on: December 14, 2015 | by Lasnetski Gihon Law

In Florida, an owner of property has strong constitutional privacy rights in his/her property. This means that, with few exceptions, the police cannot enter to search that property with consent from the homeowner or a valid search warrant. If the police knock on a property owner’s door and request to search the property, the owner has every right to refuse.

This right to privacy generally does not change when the property owner takes in a roommate or tenant. It generally does not change when the owner leases the property entirely to someone. However, it depends on the circumstances. The general idea is that if the law recognizes that the owner had a reasonable expectation of privacy in the property, even if it is leased to someone else, the owner maintains his/her privacy rights in that property with respect to the state. This means the owner can refuse entry into the property or challenge a search of that property by police in court.

Two examples may illustrate the difference. A property owner leases property to a tenant. The property owner keeps a key and goes inside the residence to check on it, make repairs and collects rent. The tenant lives at the residence, but the property owner maintains the right to go onto the property and go into the residence within reason. In this case, the property owner would exercise sufficient control over the property to maintain his/her privacy rights.

The Inevitable Discovery Rule in Florida

Published on: December 11, 2015 | by Lasnetski Gihon Law

There is a search and seizure rule in Florida that many people are not aware of that can be quite onerous, depending on how it is applied. It is called the inevitable discovery rule. To understand the rule, it is important to first understand your rights. The Constitution guarantees a person the right to privacy in one’s home, vehicle and other property. This means the police cannot search a person’s property without consent to search, a valid search warrant or some other narrow exception. If the police do search a person’s property without authorization, any incriminating evidence can be thrown out of court with a motion to suppress.

However, the inevitable discovery rule gives the state an avenue to save their case even when the search is illegal. Basically, it says that even if the police conduct an illegal search and find incriminating evidence like illegal drugs, the state can still use the evidence against the defendant if the police would have discovered the evidence anyway by some other legal means. This rule has been applied to save a lot of criminal cases when the search was illegal.

However, there are limitations to the inevitable discovery rule in Florida. For instance, the rule only applies if there is a legitimate investigation taking place when the illegal search is conducted. For instance, in a case near Jacksonville, Florida, a guest in the defendant’s home saw that he was growing marijuana plants in the home and called the police. Several police officers came to the defendant’s home wearing masks with guns drawn and obtained consent to search the house. They found the marijuana plants inside and arrested the defendant for cultivation of marijuana.

Vehicular Homicide in Florida Can be Committed with Reckless Driving Irrespective of Alcohol or Drugs

Published on: December 8, 2015 | by Lasnetski Gihon Law

In Florida, vehicular homicide is a very serious felony offense that normally results in a prison sentence if the state can prove its case. Most of these cases deal with someone who is driving while impaired from alcohol and/or drugs and causes a traffic crash that results in the death of another person. If the state can prove that the driver was impaired so that his/her normal faculties were compromised, such as sight, judgment, coordination, and the driver causes a crash that results in a death, a vehicular homicide charge will likely follow.

There are serious traffic crashes that occur every day in Florida. Most of them are the result of one or more people driving poorly and violating some traffic law causing a crash. People speed, change lanes without looking, run red lights and commit other traffic infractions that result in serious crashes. It is always a judgment call, but if the person who causes the crash commits a routine traffic infraction, criminal charges are not likely. For instance, regular speeding, running a red light, improper lane change are generally not the kinds of things that result in criminal charges after a serious crash. Those are generally considered negligence cases that result in traffic citations and civil lawsuits.

However, even if no alcohol or drugs were involved, if the driving could be considered reckless, criminal charges can be brought. Recklessness has a legal definition, but it is a matter of interpretation. Basically, it is a judgment call, and it depends on the circumstances, although the more serious the crash and the more serious the injuries, the lower the bar. Also, the more traffic laws that are violated, the more likely a police officer or prosecutor (and ultimately a judge or jury) will consider the driving to be reckless. Simply running a red light will rarely be recklessness that is enough for a criminal case. However, running a red light plus driving 30 miles per hour over the speed limit while texting on a cell phone could certainly be considered reckless driving if it results in a serious accident.

In Florida, You Have a Right to Privacy in Your Home, But Not Necessarily Your Computer

Published on: December 4, 2015 | by Lasnetski Gihon Law

In Florida, there are fairly strict rules that address when police can search your residence, your vehicle, yourself and your belongings. Essentially, if you have a reasonable expectation that the thing to be searched is private, then the police are limited in when and how they can search it. Certainly, this applies to your home, yourself and your vehicle. However, it does not apply to everything you own and in some cases, you lose your expectation of privacy when you use a belonging in a certain way.

For instance, if you have a computer, whether it’s a regular home computer or a laptop you carry with you or any mobile device that stores data and acts like a traditional computer, the police generally cannot take it from you and search it without a search warrant or consent from you. They also normally cannot use a program to search the contents of your computer or mobile device. However, if you use your computer in certain ways, the police can take steps to view the data on your computer or mobile device.

If you are on your computer and sharing files on a peer to peer network with other people, such as Gnutella, you open yourself up to allowing the state to see what you are doing. Since you are publicly sharing your information with others, you no longer have a reasonable expectation of privacy in those items and on that network. State and federal law enforcement agencies have catalogued certain files that are associated with criminal activity, such as child pornography, and when they see these items shared and/or downloaded, law enforcement can obtain the IP address and then subpoena the internet service provider to find an actual address. A search warrant and seizure of all computers and storage devices in the home will likely follow.

The State in Florida Cannot Use a Defendant’s Confession Alone to Prove Case Without Independent Evidence

Published on: November 30, 2015 | by Lasnetski Gihon Law

In a criminal case in Florida, if the state has a full, valid confession of a crime from a suspect, can they use that alone to convict the person of the crime? No. The state must have evidence independent of a confession to prove the crime occurred before it can use a confession against a defendant. Most of the time, this is not an issue, but there are cases where the state tries to rely on a confession without much, if any, independent evidence that a crime occurred and that the suspect committed the crime. The state does not need to prove the crime beyond a reasonable doubt independent of the confession, but the state does need to have substantial evidence of the crime outside of the confession. The state can use direct or circumstantial evidence to independently establish the crime. However, independent evidence of the identity of the suspect is not a requirement for a confession to be admissible, unless it is necessary to prove a crime occurred.

This may seem obvious. The police must have some evidence that the suspect committed the crime or they would not likely bring the suspect in for a confession. However, there are cases where the identify of the suspect is critical to the issue of whether a crime occurred. For instance, if three people are in a vehicle, it crashes and when police arrive, all three people are outside of the vehicle. When the police arrive, it is not clear which was the driver at the time of the crash. Only one of the three is impaired from alcohol. This is only a crime (a DUI) if the impaired person was driving. If that person confesses that he was driving, that may be the only evidence that a crime occurred as it would not be a crime if one of the other two was driving. In that case, if the state had no other independent evidence the impaired person was driving, the confession alone would not be enough to prosecute the driver for DUI.

Consider another DUI case where a person crashes into another vehicle and causes an injury or death and leaves the scene. The police track the vehicle and determine that it was the vehicle involved in the crash based on paint transfer and location of the damage. Inside the vehicle, the police find items linking the vehicle to the suspect, such as a house key and documentation. If the suspect later confesses, that confession could be used against the defendant since there was independent evidence that a crime occurred and that the suspect was the driver.