Jacksonville Criminal Lawyer Blog

Florida Uses a Broad Interpretation of its Money Laundering Statute

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

In Florida, a person commits the crime of money laundering when he/she conceals the nature, source or location of proceeds of specified unlawful activity. Money laundering in Florida only applies to money or other property that comes from “specified unlawful activity”, but that term is defined very broadly and certainly includes just about any form of theft. “Conceals” is given its ordinary definition and includes any action done to try and avoid disclosure or detection.

When most people think of money laundering cases, they think of some elaborate scheme where a suspect moves money around through different banks and countries or moves the money through a legitimate business to make it difficult for the police to discover where the money went and where it came from. However, much less movement is needed to meet the concealment element of a money laundering crime. In fact, we have seen a money laundering charge where a suspect has merely moved money from one account to another in the same name at the same bank.

In a recent case near Jacksonville, Florida, a church maintained four separate bank accounts, and donations were deposited into those accounts depending on the particular charitable intentions of the members. The pastor had exclusive control over the benevolent account which was supposed to be for donations benefiting needy people in the community. The other three accounts were for other, specific charitable purposes. Over a couple of years, the pastor transferred money from the other three accounts into the benevolent account and then used money from that account for personal expenses. The pastor was ultimately charged with theft for stealing money that was meant for charity and money laundering for moving money from the other accounts into the benevolent account which he controlled on his own.

Florida Stand Your Ground Law Cannot Be Used Against Police Officer Engaged in Official Duties

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

As many people are aware due to some recent high profile cases, Florida has the Stand Your Ground law which provides that the state cannot prosecute a person who used justifiable force under the circumstances. When a defendant properly defended himself with reasonable force under the circumstances, the Stand Your Ground law establishes an immunity for the defendant so that the state cannot move forward with its prosecution of the defendant.

However, the Florida Stand Your Ground law does not apply in certain situations. For instance, a defendant cannot attempt to use the Stand Your Ground immunity when the alleged victim is a police officer engaged in the performance of his/her official duties as long as the officer either identifies him/herself as a police officer or it is clear from the circumstances that the defendant knew he/she was an officer.

In a recent case near Jacksonville, Florida, a police officer was responding to a robbery call at night. The police officer was led to the defendant’s residence and observed the defendant outside. The officer claimed to have identified himself, pulled out his gun and pointed the gun and his flashlight at the defendant. The defendant shot the police officer in response.

Be Careful in Florida Driving Someone Else’s Vehicle if That Person Might Have a Legal Problem

Published on: March 19, 2015 | by Lasnetski Gihon Law

In Florida, a lot of criminal cases are initiated based on fairly routine traffic stops. What might start out as a speeding or red light violation can easily turn into a DUI, felony drug or driving with a suspended license arrest. Additionally, a lot of arrest warrants are served based on traffic stops.

Police officers have a lot of leeway to make traffic stops. If a police officer says a driver violated a traffic law, he/she will be able to pull that driver over, and any attempt to contest it will be a difficult credibility contest between the suspect and the police officer. A police officer in Florida can also use the information he/she obtains from the computer when running a license tag to make a traffic stop. For instance, police officers will often run tags on their computer to determine if the registered owner of the vehicle has a suspended license or outstanding arrest warrant. A police officer can stop a driver if the officer runs the tag to the vehicle in the computer and learns that the owner of the vehicle has a suspended license or outstanding warrant. This is so even though we all know a vehicle owner is not necessarily the current driver.

In a recent case near Jacksonville, Florida, a police officer ran a tag and learned that the owner of a vehicle had a suspended license. The officer conducted a traffic stop and asked for the driver’s license. The driver was not the owner of the vehicle, but he also had his driving privileges suspended. He was arrested for driving with a suspended license.

Odor of Alcohol and Beer Cans Found on Boat WEre Not Sufficient for Boating Under the Influence (BUI) Investigation

Published on: March 16, 2015 | by Lasnetski Gihon Law

In Florida, most alcohol related criminal cases are DUI cases, however it is not uncommon for us to see boating under the influence, or BUI, cases as well. There are some similarities between DUI and BUI cases as well as certain differences. As to the similarities, it is illegal to drive a boat while impaired, and the police will try and get the boat driver to submit to field sobriety exercises and a breathalyzer test just as with a DUI. Additionally, the penalties for BUI and DUI cases are similar.

There are also some key differences. Some of the observations the law enforcement officers make trying to prove impairment are obviously different when a person is on a boat versus in a vehicle. Additionally, it is not illegal to drink alcohol on a boat, while it is illegal for any occupant to have an open container of alcohol in a vehicle on the road.

In a recent case near Jacksonville, Florida, a Fish and Wildlife Department officer observed the defendant violating the wake free zone with his boat. He asked the defendant to pull his boat over to the officer’s boat. The defendant was able to maneuver his boat over to the officer’s boat. The officer then conducted a safety inspection which required the defendant to retrieve certain items such as a life vest, boat registration and other items required to be on the boat. The defendant had to balance himself while obtaining these items. The officer then indicated that he noticed an odor of alcohol coming from the defendant and saw two empty beer cans in the boat. Based on these observations, the officer requested the defendant submit to field sobriety tests and the breathalyzer test. Once those were completed, the officer arrested him for BUI.

Florida Appellate Court Awards Attorneys Fees to Claimant After Money is Forfeited Without Evidence of Criminal Activity

Published on: March 1, 2015 | by Lasnetski Gihon Law

As we have mentioned many times before on this website, we have seen many cases where a Florida law enforcement agency has taken money or other property from a person without any indication that the person or the property was involved in criminal activity. The Florida forfeiture laws allow the police to take property from people in a variety of circumstances, even when the police do not have sufficient evidence to make an arrest. In these situations, it is important for the property owner to contact a forfeiture attorney to assert his/her rights and take the proper steps to recover that property. We have represented people who have been the victims of outright theft of hundreds of thousands of dollars by the police under the forfeiture laws in Florida, and we often do it at no upfront cost to the claimant.

It looks like the Miami Dade Police Department is no different than many others in Florida that will take a person’s cash without any regard to a lack of evidence and perhaps ask those questions later. In a recent case in South Florida, an individual was traveling to Miami from Colombia with about $120,000 in cash. When he went through customs, the police stopped him and asked him questions about the cash. He said he was coming to Miami to buy cell phones to resell at his store in Colombia. The police took his cash anyway and initiated forfeiture proceedings to keep the cash. In the forfeiture pleadings, the state alleged that the individual was using the cash to buy illegal drugs. However, the state offered no specific evidence to support that allegation, and no criminal arrest was ever made.

On the other hand, the claimant was able to present witnesses who would testify that the claimant was in the electronics business and had purchased cell phones in the past from legitimate electronics businesses in Miami for resale in his home country. The claimant also presented receipts for past purchases of cell phones for resale in Colombia. In any case, it was the state’s burden to establish probable cause that the cash was the proceeds of illegal activity or used in connection with legal activity. The state failed completely in doing so.

Florida Police Officer Was Justified in Stopping Vehicle Where Window Tint Was Too Dark to See Driver

Published on: February 26, 2015 | by Lasnetski Gihon Law

In Florida, a police officer can stop a vehicle if the vehicle’s window tinting is too dark. The Florida statute provides that the side windows on a vehicle must have a light transmittance of at least 28% in the visible light range. This can be measured by certain devices after the initial stop is made. Of course, the initial issue is whether a police officer is permitted to stop a vehicle based on his/her opinion that the window tinting is too dark and illegal. A person cannot usually make that determination for certain based on looking at it from another vehicle.

A police officer is allowed to stop a vehicle if he/she has probable cause to believe a crime is being committed or a traffic law is being violated. In a recent case near Jacksonville, Florida, a police officer stopped a vehicle during the day because he could not see the driver through the side window due to the window tinting. He stopped the driver and found marijuana and cocaine inside. The driver was arrested for possession of marijuana and cocaine. The criminal defense lawyer filed a motion to suppress claiming that the police officer did not have a legal basis to make the initial traffic stop. The police officer testified that he pulls drivers over if the window tinting is too dark for him to see the driver. The court allowed this. Since the police officer has no way of determining for certain if window tinting is too dark as the vehicles are driving, if the police officer can establish in good faith that he had probable cause to believe it was too dark, it was a valid stop. The court found that the testimony that the police officer could not see the driver in the daylight was sufficient to establish a good faith basis that the window tinting was not legal.

Can the State Use a Defendant’s Pre-Arrest Silence Against Him/Her at Trial in Florida?

Published on: February 20, 2015 | by Lasnetski Gihon Law

Most people are aware that the United States Constitution affords people the right to remain silent. This means that a person does not have to give any statement to police that might be incriminating, and a defendant cannot be compelled to testify at his/her own trial. If a person chooses not to speak with police and/or chooses not to testify at trial, the state cannot use that choice against the person. For instance, a prosecutor could never tell the jury to infer that the defendant is guilty because he/she did not testify and defend him/herself at trial.

When a person is arrested in Florida, he/she should be read Miranda warnings. The Miranda warnings inform a person of certain rights, including the right to remain silent and the warning that if the suspect does make a statement, it can be used against him/her in court. That is fairly well known at this point. If a person is arrested and decides not to make a statement, he/she is exercising his/her constitutional rights, and the state cannot mention that silence at the defendant’s trial to try and use it against him.

However, there are times when a police officer is investigating a crime and is not sure whether a person is a suspect. In those early stages, before any arrest, if the police officer asks a person questions and the person remains silent, can that silence be used against him/her at trial? Technically, before an arrest or a detention where the person is not free to leave, Miranda warnings and the constitutional right to remain silent are not implicated. What if a police officer arrives at a crime scene, has no idea who the suspect might be, asks a person some questions, that person remains silent and then is later developed as a suspect? Can the state use that silence against him/her?

State Failed to Prove a Violation of Probation with Hearsay Evidence From Probation Officer

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

When a defendant in Florida is arrested and charged with a crime and then decides to enter a guilty or no contest plea, or has a trial and is found guilty, he/she will be sentenced by the judge. The judge will likely have a few options when sentencing the defendant. The judge can sentence the defendant to incarceration, probation, both or neither (time served). If the defendant is sentenced to a term of probation, there will be certain conditions that the defendant must follow. If the defendant fails to comply with one or more of the conditions of his/her probation, the judge may issue an arrest warrant for a violation of probation. If it is determined that the probationer violated his/her probation, the judge will likely sentence him/her again to incarceration and/or more time on probation.

There are a few conditions that are fairly standard for anyone on probation. For instance, a person on probation will likely be required to avoid possessing or using any drugs, except those prescribed by a doctor. If the original charge was a drug related charge, the probationer might have to have to take random drug tests. If the probationer is found with an illegal drug like cocaine or marijuana in his/her system, a violation of probation warrant is likely. If the probationer is found with a drug like Hydrocodone or Xanax in his/her system, the probationer should be safe as long as he/she can show that he/she has a valid prescription for the drug. Normally, the probationer will inform the probation officer of all of his/her prescription drugs at the beginning of the probation. However, if the probationer cannot produce a valid prescription, it will likely be treated as if the probationer is using any other illegal drug.

In a recent case near Jacksonville, Florida, a defendant received a probationary sentence and was required to avoid possessing or using any drugs, except a prescription drug with the appropriate prescription from a doctor. After a random drug test, the probationer’s sample tested positive for opiates and Oxycodone, according to his probation officer. A warrant for a violation of probation was issued. At the probation violation hearing, the state’s only witness was the probation officer. He testified that he performed an informal field test on the probationer’s urine sample that resulted in the positive results. The sample was then sent off to a drug testing lab for more formal testing. At the hearing, the probation officer brought the more thorough lab test result document that also indicated the probationer provided a urine sample positive for opiates. Finally, he testified that he received an anonymous call indicated he should drug test the probationer because he was using drugs he bought off the street.

President Obama’s Proposed Budget Allocates More Money to the War on Drugs

Published on: February 5, 2015 | by Lasnetski Gihon Law

While there seems to be some growing recognition that the war on drugs is criminally wasteful and counterproductive, with more states legalizing marijuana either for recreational purposes and/or medicinal purposes, clearly we still have a long way to go before we approach a reasonable and fiscally responsible state of affairs. The federal government has taken some limited steps to reign in the massive war on drugs. For example, the federal sentencing guidelines did partially rectify the extreme disparity between prison guideline sentences for crack cocaine cases versus powder cocaine cases. The federal government also does not appear to be interfering when states legalize marijuana, at least not as often as it did before.

However, much of the rhetoric from the federal government about the ineffective war on drugs and tremendous amount of money wasted on it is just that- rhetoric. President Obama recently released his proposed budget for fiscal year 2016, according to a recent article. Unfortunately, more and more money is being allocated to the war on drugs and the federal prison system. The budget proposes $3.7 billion for the Bureau of Prisons (an increase of $187 million), $2.46 billion for the Drug Enforcement Agency (an increase of $90 million) and $293 million for the Office of Justice Programs (an increase of $50 million). That last allocation is a significant 20% increase that goes towards drug tasks forces that are specifically designed to perpetuate the war on drugs and feed the bloated and expensive prison system.

Of course, as the article notes, this is just a proposed budget. Congress can make all sorts of changes to it. These war on drug expenditures can get better or, more likely, worse. In any case, it is hard to take the federal government seriously when it negatively mentions the war on drugs and then proposes hundreds of millions of dollars in increases to make more drug cases. In this case, as usual, money talks.

Senators Propose New Law to Curb Forfeiture Abuse

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

Over the years, handling asset forfeiture cases in Florida and Georgia, we have seen some eye-opening practices of police and other law enforcement agencies designed to take property from people for their own benefit. It is not uncommon for law enforcement agencies to take large amounts of money or other property from people when there is virtually no evidence a crime was committed and no hint of criminal charges. The forfeiture laws allow law enforcement agencies to do this, and they do so with the idea that they can either work out a settlement down the road or, in the case of smaller amounts of cash, the claimant will not bother to pursue the property or will not know how to pursue it. We have even seen cases where the police seize bank accounts without having a basis to arrest anyone but threaten arrests later for leverage during settlement negotiations.

Why do law enforcement agencies squeeze citizens this way and take their property with little to no regard for the laws and Constitution? Profit. Few things excite a police officer more than the prospect of forfeiting a nice car that is paid off that can be used as an undercover vehicle or some other purpose by that law enforcement agency. As long as these law enforcement agencies can directly profit from taking property away from people, they are going to do it. A lot.

Therefore, the obvious remedy to curb these abuses is to attack the motive, the profit motive. If it is so obvious, why hasn’t this happened yet? Well, it is difficult to get the government to limit itself, particularly when the thing they desire most ($$$) is at stake. In the past, federal law enforcement agencies were not allowed to directly profit from their seizures and forfeitures. That changed in the 1980’s, and as expected, the number of forfeitures increased significantly.