Jacksonville Criminal Lawyer Blog

When Can Oral Communications Be Secretly Recorded in Florida?

Published on: July 13, 2015 | by Lasnetski Gihon Law

With cell phones that have the capability to record audio and video, people record other people’s communications all of the time. However, that may not be legal in Florida. There is a statute that addresses this issue, but its interpretation is not clear. The Florida statute basically says it is illegal to record another person’s conversation without that other person’s knowledge and consent. This means you cannot call someone on the phone and record the conversation without telling the other person you are recording the conversation and getting his/her agreement. There are exceptions to the rule, and it is not exactly clear how the exceptions apply.

Of course, as indicated, knowledge and consent of the other party makes recording legal. Also, there is a legal exception for law enforcement officers to intercept an oral communication when the officer is a party to the conversation and for law enforcement to record a conversation involving other people if one of the parties agrees and it is for the purpose of obtaining evidence for a criminal case.

Based on this, it is clear that the police are permitted to record a conversation between Person A and Person B if Person A knows about the recording and agrees to it and the purpose is to discover evidence for a criminal case. This is what is commonly known as a controlled call. The police often use this technique to have a trusted friend or family member who is working with the police call a suspect and try to get the suspect to make incriminating statements while they record the call. As long as the suspect’s friend agrees to the recording, it is legal even though the suspect obviously will not be told of the recording or the police involvement.

State Cannot Use Breathalyzer Test Results Against Defendant in DUI Case Where Independent Blood Test Was Requested

Published on: July 10, 2015 | by Lasnetski Gihon Law

In Florida, when a police officer makes a traffic stop and claims he/she observes evidence of impairment from alcohol, that officer will initiate a DUI investigation. This usually starts with questions about where the driver has been, how much the driver has had to drink and other questions about the driver and his/her activities. The driver, of course, is free to request a lawyer and refuse to answer those questions. Next, the police officer will request that the driver submit to field sobriety tests. Again, the driver is free to refuse to submit to those tests. The driver should probably refuse to submit to those tests if he/she has any health/physical issues and/or the police officer does not have a video camera in his/her vehicle that accurately, objectively and completely records the driver’s performance of those tests. Sometimes, even when there is a video camera, it is difficult to observe exactly how the driver performs on some or all of the field sobriety tests. In that case, the driver is at the mercy of the police officer’s subjective opinions as to his/her success. This can be due to the placement of the car in relation to the test location, the lighting and the obscure nature of the tests themselves.

After a DUI arrest, the police officer will ask the driver to submit to a breathalyzer test which tests the driver’s blood alcohol level. The driver can refuse this test, but it is important to note that when a person in Florida agrees to accept a driver’s license, he/she impliedly consents to submit to a breathalyzer test after a valid DUI arrest. If the driver decides to refuse the breathalyzer test, that driver is subjected to a longer driver’s license suspension and could have the refusal used against him/her if the DUI case goes to trial.

However, some people do not necessarily trust the government with their lives and well-being. They might agree to submit to a breathalyzer test, but request an independent blood test that is not provided by the police. In this situation, the driver should politely and clearly request an independent blood test. Under Florida law, a person arrested for DUI whose breath is tested has a right to request an independent blood test. Of course, most people do not drive around with a lab technician who is prepared to test blood for alcohol. Likewise, the police are not likely to let the suspect who is under arrest leave to get a blood alcohol test and return later.

Defendant in Florida May Not Be Charged With Drug Possession if Drugs Found During Overdose

Published on: June 15, 2015 | by Lasnetski Gihon Law

There is a law in Florida that is not well known that protects people from drug charges if police find drugs while assisting someone during a medical emergency due to a drug overdose. A Florida statute provides immunity from prosecution for a person who is experiencing a drug overdose and is in need of medical attention if the police find evidence of the drug possession crime as a result of the overdose and medical attention.

For instance, suppose a person uses a drug like cocaine or heroin and becomes seriously ill so that someone calls 911 for medical attention and the police arrive. If, in the process of assisting the person, the police find cocaine or heroin or any other evidence of illegal drugs, this law protects the person from arrest for the drug charge. If the police officer, who may not be familiar with this law in Florida, does decide to arrest the person, the criminal defense lawyer can file a motion to dismiss the drug charge based on this immunity. The police can take a person into protective custody who needs emergency medical attention due to drug abuse. However, this cannot lead to criminal prosecution if drugs were found during the medical treatment.

This protection does not help everyone who is feeling the effects of drug abuse. If a person is clearly impaired from drugs and someone calls 911 for an ambulance, that does not automatically trigger the immunity from prosecution. Ultimately, it would be up to a judge to decide, but the criminal defense lawyer would have to establish that the defendant was more than just high or intoxicated. The criminal defense attorney would have to establish that the defendant was experiencing a serious medical emergency when the evidence of the drugs was found. Presumably, this evidence would be presented by way of medical records and witness testimony, if applicable.

Police in Florida Generally Need a Search Warrant to Obtain Real Time Cell Phone Information

Published on: June 3, 2015 | by Lasnetski Gihon Law

Most people are aware that cell phones have GPS data that allows a cell phone provider to track and determine the location of the cell phone. This can be valuable information to police officers who are looking for a cell phone, or a suspect, at any given time. Do police officers need to get a search warrant to be permitted to obtain this GPS information from the cell phone provider?

In a recent case near Jacksonville, Florida, a drug deal went bad, and a shooting occurred. The victim contacted police and told them the suspect fled with a cell phone. The police officers contacted the provider for the cell phone and filled out a form claiming it was an emergency and they needed the real time location data for the cell phone. The police did not get a search warrant for the cell phone provider; they merely filled out the form requesting the information. The cell phone provider complied, and the police found the suspect within a couple of hours. When the police found the suspect, they also found the gun used in the shooting, and the suspect was arrested for murder, drug crimes and gun crimes.

The criminal defense lawyer filed a motion to suppress the seizure of the gun arguing that the police illegally searched the cell phone information which led to the suspect which led to the gun. The court agreed. A person does have a reasonable expectation of privacy in his/her real time cell phone information. As a result, the police need probable cause and generally need a search warrant to obtain this information. Because they did not get a search warrant here and relied on a form that is not approved and signed by a judge, the search was considered illegal.

Police in Florida Cannot Enter Secured Property for Investigation Based on Anonymous Drug Tip

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

The right to privacy in one’s home and on one’s property is one of the strongest rights in the Constitution. The police are not allowed to come into one’s home and search or ask questions without consent from the resident or a valid search warrant. The fact that the police in Florida have an anonymous tip that a resident is growing marijuana plants or engaged in any other illegal activity does not change that.

However, if the police do get an anonymous tip of illegal activity and it is not sufficient for a search warrant, the police can normally walk up to the suspect’s front door, knock and see if the occupant(s) will answer questions or let the police in to investigate. In this way, the police are entitled to the same access as any of member of the public who can walk up to a person’s door and knock.

One exception is if the front door is not easily accessible. For instance, if there is a fence surrounding the property or the home is otherwise enclosed or secluded in such a way that it is apparent that the occupant(s) does not want people to be able to freely walk up to the door, the police cannot go through a fence or intrude onto the property without consent or a search warrant.

You Can Be Pulled Over If You Have a Trailer Hitch or Anything Else Obstructing Your License Plate in Florida

Published on: May 27, 2015 | by Lasnetski Gihon Law

A lot of serious criminal arrests are the result of simple, seemingly harmless traffic stops. Many drug cases and gun cases originate from simple traffic violations that lead to traffic stops that lead to criminal investigations and searches and seizures. Of course, most DUI arrests are also the result of simple traffic stops.

In a case near Jacksonville, Florida, the defendant was driving a vehicle with a trailer hitch. A police officer driving 25 feet behind him noted that he could not read the defendant’s complete license tag due to it being partially blocked by the trailer hitch. For that reason, the police officer pulled the defendant over. After some investigation and a search of his vehicle, the police officer arrested the defendant for possession of marijuana and possession of cocaine.

The criminal defense lawyer filed a motion to suppress the evidence of the marijuana and cocaine alleging that the police officer did not have a legal basis to stop the defendant based on a partially obscured tag caused by a trailer hitch. Florida law provides that all vehicles must be properly licensed and all of the letters and numbers on the license tag must be clear and free from any obscuring matter so they can be plainly visible and legible at least 100 feet from the vehicle. The criminal defense attorney pointed to a prior case which interpreted this law to mean that the license plate itself cannot have anything on it that would obscure the letters or numbers. Therefore, a trailer hitch, which is not actually on the license plate, would not violate this law. However, the court in this case, which has precedence over Jacksonville, Florida, held that the intent of the law is that the license tag must be clearly visible from at least 100 feet away. If something is blocking it, either on the actual license plate or external to the license plate, the law is being violated. As a result, the court found that the initial stop was valid due to a partially obscured license plate, whatever the reason for the obscurity may have been.

Necessaity Can be a Defense to Criminal Traffic Charges in Florida

Published on: May 24, 2015 | by Lasnetski Gihon Law

In Florida, the defense of necessity may be available for a defendant charged with a variety of criminal charges. When using this defense, a defendant is basically saying that he/she did commit the crime, but did so because it was necessary due to some urgent circumstances. The necessity defense has a few conditions that must be met: 1) the defendant reasonably believed the criminal act was necessary to avoid imminent death or serious injury to him/herself or others, 2) the defendant did not intentionally put him/herself in the position that resulted in the need to take action, 3) the criminal act was the only adequate method to avoid the problem, 4) the harm to be avoided was more serious than the criminal conduct, and 5) the defendant ceased the criminal conduct as soon as the threat dissipated.

There are situations where a necessity defense would be a valid defense. If a person needed to drive while impaired or with a suspended license to get a person with a serious and emergent health problem to the hospital, that might qualify. However, this defense often fails with conditions one and three.

For example, in a recent case near Jacksonville, Florida, two guys went out to a bar. One of them got too drunk to drive, and the defendant had a suspended driver’s license. The defendant decided to drive home. He was stopped by police and arrested for driving with a suspended license. His criminal defense attorney tried the necessity defense to defend the case. It failed. The problem with condition number one was that being drunk is not a threat that involves the risk of imminent death or serious bodily injury. If the friend was so drunk that he was getting seriously ill, this condition might have been satisfied. However, just being too drunk to drive did not qualify. The problem with condition number three was that there were other reasonable and adequate alternatives, such as walking, calling a friend for a ride or calling a taxi. Because this defendant’s necessity defense did not come close to satisfying those two conditions, the defendant was convicted of driving with a suspended license. Likewise, if the drunk guy drove because the defendant’s license was suspended and he got arrested for DUI, his necessity defense would have failed for similar reasons.

Collection of DNA May Toll Statute of Limitations in Lewd and Lascivious Battery Cases

Published on: May 21, 2015 | by Lasnetski Gihon Law

In Florida, the state must commence prosecution of a suspect within a certain period of time from the date a crime is committed or reported. That period of time is referred to as the statute of limitations. It provides that the state must prosecute a suspect within a certain period of time, and if they do not, the state can never prosecute the suspect for that crime. The idea is that a defendant has a constitutional right to properly defend him/herself, and if the state unreasonably delays in bringing its case against the defendant, it could impair the defendant’s ability to defend the case. Witnesses forget, they move away, they pass away and evidence can be difficult or impossible to obtain as time passes.

There are various factors that can toll a statute of limitations. This means that the time period can be stalled, or the clock can be stopped, if one of these factors exist. For instance, if the defendant leaves the state of Florida and the police cannot find him/her despite their due diligence, this could toll the statute of limitations. Additionally, in some cases, like fraud cases, the victim is not aware that he/she has been defrauded until much later so the statute of limitations may not start until the victim knows or should have known that he/she has been a victim of fraud. In sex cases, collecting DNA can toll the statute of limitations until it can be tested.

In a recent case near Jacksonville, Florida, a fifteen year old girl gave birth, and a thirty year old guy was listed as the father. Since it is illegal for a 30 year old guy to have sex with a 15 year old girl, the police started a lewd and lascivious battery investigation. The father/suspect fled, and he could not be located to be interviewed or arrested. As a result, the police moved the case to the inactive list. Every now and then, they would look at the case in an attempt to find the suspect. The statute of limitations on the lewd and lascivious battery case was three years. More than three years later, the police found the suspect and took a DNA sample from him. They also took a DNA sample of the child and found a match. The suspect was arrested.

Assumptions and Police Officer’s Super Human Eyesight Are not Sufficient for a Search and Seizure in Florida

Published on: May 10, 2015 | by Lasnetski Gihon Law

In Florida, the police are not allowed to stop a person for a drug or other criminal investigation without reasonable suspicion that the person is engaging, just engaged or is about to engage in criminal activity. This reasonable suspicion standard requires more than just assumptions. There must be some specific evidence that reasonably leads a police officer to believe there is criminal activity afoot.

In a recent case south of Jacksonville, Florida, the police officer was at a gas station in the evening as it was getting dark and observed the suspect enter into a hand to hand transaction with another person in the parking lot. The police officer was about 30 feet away, but he said he could see the suspect give the other person a rolled up baggie. The police officer assumed it was marijuana based on the neighborhood and the nature and short duration of the transaction. As a result, the police officer stopped the suspect, searched him and found marijuana in his pocket. He was arrested for possession of marijuana.

The criminal defense attorney filed a motion to suppress the marijuana evidence arguing that the police officer did not have a reasonable basis to stop the defendant. The judge agreed. While the police officer was correct that the transaction did involve marijuana, learning this after the fact cannot be a basis for a prior search. The police officer must be able to point to specific facts indicating criminal activity before he/she stops a suspect. In this case, the police officer was too far away to see or smell marijuana. He was just relying on assumptions based on limited information. Short, hand to hand transactions in questionable neighborhoods may mean drug deals, but they also might mean something else. That alone is not sufficient to permit a search and seizure. Because the police officer did not rely on sufficient facts indicating criminal activity, the stop was unlawful, and the resulting search was unlawful. As a result, the marijuana charge was thrown out.

People on Probation in Florida May Have Reduced Constitution Rights Regarding Searches and Seizures

Published on: May 7, 2015 | by Lasnetski Gihon Law

Most people in Florida enjoy the Constitutional protections that prevent the police from searching a person’s home, vehicle or other belongings without probable cause, a search warrant and/or consent. In other words, police cannot just go and enter a person’s home or search something that belongs to a person without respecting certain Constitutional safeguards, which generally require a search warrant or an agreement from the owner of what is being searched.

However, people on probation in Florida do not necessarily get the full protection of these Constitutional provisions. When a defendant pleads guilty or no contest to a criminal charge or is found guilty after a trial, the judge will sentence the defendant. That sentence often includes probation, either by itself or after a term of incarceration. When a defendant goes on probation, there are certain conditions that must be followed. There may be specific conditions in certain cases, such as paying a certain amount for restitution in a fraud case, and general conditions that apply to most or all cases. One of the general conditions of probation that is often ordered in Florida is one that allows a probation officer to enter the probationer’s home to search it for drugs, weapons or other indicia of criminal activity. While a probation officer or law enforcement officer would not normally be allowed to enter a person’s home and look around without a search warrant or permission in advance, a person on probation does not have that same protection if a random search was included as a condition of probation. If the probation officer randomly searches a probationer’s home and finds anything illegal, that probationer could face new charges and a violation of probation charge without being able to successfully challenge the search and get the evidence thrown out.

In a recent case near Jacksonville, Florida, a defendant was sentenced to probation after being convicted of a violent crime. A general condition of probation allowed the probation officer to enter his home any time to search it. These general conditions of probation are often not disclosed to the defendant in court during the sentencing hearing. A defendant may have to carefully read his/her sentencing paperwork to see that the condition exists. Many do not bother to do that.