Jacksonville Criminal Lawyer Blog

Attorney General Eric Holder Issues a New Order Addressing Asset Forfeitures, But it Doesn’t Do What Many Seem to Think it Does.

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

As criminal defense and asset forfeiture attorneys in the Jacksonville, Florida area, we have seen the many different ways the government will take and forfeit someone’s property under the state or federal asset forfeiture laws. These cases have ranged from questionable searches seemingly designed to seize and forfeit certain property to cases where property is taken but no criminal arrests are ever made to outright thefts by the government of a person’s property. Unfortunately, the government’s taking of property is an area that has not received the attention that it deserves. When the police go and take a person’s cash because he/she is carrying a large quantity of it without even contemplating an arrest and with no indication that the person committed any crime, that should get some scrutiny. But, it rarely does.

Attorney General Eric Holder recently made an announcement about a rule change regarding certain asset forfeitures. The new rule prohibits federal agencies from adopting state asset forfeiture cases, except for those cases involving public safety, i.e. guns, explosives, child pornography. After the new rule was published, we saw a lot of articles on the Internet indicating this is the end of asset forfeitures, in some form of another. It isn’t. Not even close.

First, let’s talk about what this new rule does not address. Before we do that, it is important to understand two terms. Seizure – when the police seize one’s property, the police are taking possession of that property. Forfeiture – when the police forfeit one’s property, they are assuming ownership of that property. If the government successfully forfeits property, that property now belongs to them. Asset seizures and forfeitures are conducted by police and other law enforcement agencies at the local, state and federal levels. State asset forfeitures laws apply to the state and local law enforcement agencies; federal asset forfeiture laws apply to the federal agencies.

Court May Decide Classifying Marijuana as a Schedule I Drug is Unconstitutional

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

One of the myriad problems and idiotic characteristics of the monumentally wasteful and unsuccessful War on Drugs is that the marijuana plant, or cannabis, is classified as a Schedule I drug by the federal government. Schedule I drugs are the most highly restricted drugs and reserved for drugs that are considered the most dangerous. Also, ironically, they are drugs that are considered to have “no currently accepted medical use”, despite medical evidence to the contrary. As a result, under this rule, marijuana cannot be prescribed by a physician, despite the fact that medical marijuana is legal in one form or another in many states. Another characteristic of proper Schedule I drugs is that it must be a substance that has a high potential for abuse. As an example, heroin has a high potential for abuse. To classify marijuana and heroin together in such a category is ridiculous and unsubstantiated by any honest measure.

One result, of course, is that we have numerous criminal laws dealing with marijuana, and marijuana arrests are some of the easiest arrests for law enforcement to make to maintain their stats and keep prisons full. However, in a marijuana cultivation case pending in California, the defendants are challenging the classification of marijuana as a Schedule I drug. On its face, to have marijuana as a Schedule I drug with heroin while cocaine, methamphetamine and Oxycontin sit in the Schedule II category with drugs that apparently have “less abuse potential than Schedule I drugs”, is completely ridiculous and irrational. Hopefully, a court will see this.

If the court does acknowledge this travesty of common sense, it is unclear what effect it will have on others. While it will likely help the particular defendants in this case, it may or may not reverberate to other locations and other decisions. Hopefully, it, or something, will prompt the federal government and prosecutors and judges to see that marijuana related prosecutions are a waste of time, money and resources as well as being counter productive.

In Florida, State May Be Able To Prove a Burglary Charge If Defendant Has The Property Shortly After The Theft

Published on: January 9, 2015 | by Lasnetski Gihon Law

In Florida, prosecutors often charge someone with burglary even when there is no direct evidence that the defendant was at the house, business or other location that was burglarized. Generally, a burglary involves a person entering some structure with the intent to commit a theft or other crime once inside. Where a suspect gets caught breaking into a house or leaving a house with stolen property, a burglary charge is easier to prove. However, many burglary cases in Florida are brought even when there is no direct evidence establishing the defendant was at the location that was burglarized. There is a jury instruction in Florida that says a jury can consider the fact that the defendant was in possession of stolen property shortly after the burglary to find a defendant guilty of burglary. This is the case if it is clear the property was in fact stolen and the issue is whether the defendant was the one who stole it. This instruction does not come into play when the defendant admits he/she took the property, but, perhaps, defends the case by saying he/she had a right to take it.

For example, in many cases, there will be a burglary of a house, car or other structure that can be pinpointed to a certain time, i.e. a victim hears that his car is bring broken into and immediately calls the police at 5:00 p.m. The victim says his laptop computer was stolen from his vehicle. The police will likely check local pawn shops. If the police uncover evidence showing the pawn shop that is 10 minutes away from the victim’s car has a pawn ticket and fingerprint from the defendant indicating he pawned the laptop computer at 5:15 p.m., that defendant will likely be charged with burglary, among other charges. While there may be no direct evidence, i.e. an eyewitness, that the defendant broke into the car and physically took the laptop, the state can get an instruction to the jury telling them they can consider the fact that the defendant had the stolen property shortly after the theft when considering a burglary charge. The defendant can always refute this instruction by claiming he had a reason why he had that stolen property unrelated to the burglary. This usually takes the form of a defendant claiming a friend gave it to him to sell or he bought it from a stranger and resold it. However, the closer the defendant’s possession of the stolen property is in time to the burglary, the less credible that kind of defense will be.

Florida Drug Case Thrown Out Where Police Stop Suspect for Driving Too Slowly on Highway

Published on: December 11, 2014 | by Lasnetski Gihon Law

In Florida, a lot of drug arrests stem from simple traffic stops. One way for a criminal defense attorney to attack such a case would be to challenge the legality of the initial stop. While this may be difficult when a police officer is prepared to testify that the suspect violated some traffic law, sometimes police officers make mistakes when they pull people over.

In a recent case near Jacksonville, Florida, a police officer stopped a suspect driving on the highway for apparently driving too slowly. The speed limit on the highway was 65 miles per hour, and the suspect was driving 45 miles per hour. The minimum speed was 40 miles per hour. After the police officer stopped the suspect. The police officer discovered that the suspect had a suspended license and arrested the suspect. The police officer also found a gun and cocaine in the car. The suspect ended up with felony and misdemeanor charges as a result of the traffic stop.

The criminal defense lawyer filed a motion to suppress all of the evidence leading to all of the charges because the initial stop was not valid. The suspect was not breaking any traffic laws so that would not be a legitimate basis to stop him. However, a traffic violation is not the sole legal basis for a police traffic stop. A police officer could arguably stop a driver if there was a reasonable belief that the driver was having some sort of medical problem. Police are allowed to stop a person and investigate if there is specific evidence of some kind of serious health issue. Alternatively, if the suspect was causing some type of traffic problem, that could be a legal reason to conduct a traffic stop.

It is a Felony to Bring Drugs or Contraband into a Florida Jail but State Must Prove Knowledge

Published on: December 8, 2014 | by Lasnetski Gihon Law

In Florida, it is a felony for a person to bring contraband into the jail. Many of these cases involve a person who is arrested with drugs on them and do not want to tell the police officer the drugs are there. The police officer does not find the drugs during a search incident to an arrest, but the personnel at the jail finds the drugs during a more thorough search. In that case, in addition to whatever charge the suspect was facing that prompted the initial arrest, the suspect will also face the felony charge of introducing contraband into a county facility.

However, in order to succeed on such a charge, the state must prove that the defendant knowingly introduced the contraband into the jail. Basically, the state has to prove the defendant knew he/she had the contraband on him when he/she entered the jail. Practically, the assumption will be that the defendant knew he/she had the contraband on him/her and it is up to the defense to establish that it was a mistake or he/she did not know. There are cases where the state may not be able to prove knowledge. If the defendant can show he/she was wearing old clothes or someone else’s clothes or had a bag that had been in someone else’s possession prior to getting booked in the jail or anything else to indicate he/she may not be aware of a small amount of drugs or other contraband in his/her clothes or personal items, the state may not be able to prove its case.

Keep in mind that this felony charge applies to more than drugs. Contraband under this criminal statute can also include unauthorized communications, money, tobacco products, alcohol and of course, weapons. It is also a felony to possess such contraband in the jail. If someone is able to bring contraband into the jail and does not get caught, a person who ultimately possesses the contraband can be charged with the felony crime.

What Does a Grand Jury Do, and How Does It Do It?

Published on: December 5, 2014 | by Lasnetski Gihon Law

There has been a lot of publicity about grand juries due to the recent decisions involving police officers and homicides where the grand juries have decided not to move forward with indictments. Along with the publicity, there has been a lot of confusion about what grand juries do, how they do it and what they are actually deciding.

Grand juries are very different from the regular juries that participate in criminal trials. First, the few similarities. The people who make up grand juries and criminal juries generally come from the same pool in the community. They are both sworn to do their jobs, and they both listen to evidence. After that, there are significant differences. In a criminal trial, the jury gets to hear both sides, and each witness can be cross-examined by the other side’s attorney. As a result, if a witness is not credible or changes his/her story, the other side’s attorney will have an opportunity to question the witness, attack him/her with prior inconsistent statements and ask questions and present evidence that calls that witness’s testimony into question. That is a key component to criminal trials. Both sides get to question the other side’s witnesses to attack any areas the attorney believes is questionable, or an outright lie.

That does not really happen in grand juries. Both sides are not present in grand juries. Only the prosecutor is present to ask questions of witnesses in a grand jury proceedings, and he/she can be hard or easy on a witness depending on how that prosecutor wants the proceedings to go. The grand jurors can ask questions of witnesses, but they rarely do. Even if they want to, they are not likely to be experienced in cross-examination and do not have a full grasp of the evidence and the case to do a proper job of questioning a witness’s credibility.

The State Does Not Necessarily Have to Disclose Identity of Confidential Informant in Florida

Published on: December 2, 2014 | by Lasnetski Gihon Law

In Florida, many drug trafficking and other drug crimes start when a confidential information gives information to the police about a suspect. Normally, a person is arrested for a drug crime or some other crime, and in order to improve his/her position, he/she gives information to the police about some other person allegedly involved in criminal activity. A confidential informant is exactly what it sounds like. It is a person who gives information to the police who wants to remain secret. The police also want to keep his identity secret so the person can continue to have access to the suspect without suspicion and also to protect him/her from retaliation.

In many cases, once the police get the information from the confidential informant (CI), the police go and begin their own investigation to include surveillance, undercover drug buys and search warrants. They make their drug case based on what the police observe through the surveillance, drug buys and searches. They do not necessarily use the CI to make the new case; they use him/her for preliminary information to begin their investigation. In other words, while the CI provided the information, he/she was not involved in the investigation that resulted in the charges. If this is the case, the state may not have to reveal the identity of the CI. The criminal defense lawyer may file a motion requesting the identity of the CI, but the discovery rules in Florida protect a CI from disclosure. The general rule is the state does not have to disclose the identity of the CI unless the state plans to have the CI testify at a hearing or trial. If the CI made an undercover buy or was integral to the conduct that resulted in the pending charges, it is likely that the state would have to reveal his/her identity at some point. However, if the CI was just used for information and the case was made by the police, the defendant may never know the identity of the CI throughout the course of the case.

Florida Police Try to Use “High Crime Area” to Justify Search

Published on: November 29, 2014 | by Lasnetski Gihon Law

The constitution protects people in Florida and other states from unreasonable searches and seizures. That means the police cannot come up to a person and make demands, or search them, without specific evidence that the person is engaged in criminal activity or has evidence of criminal activity. The police often try to use the phrase “high crime area” to justify questionable searches that certainly would not be permissible in other areas. Granted, there are high crime areas in the Jacksonville, Florida area and throughout Florida, but the police cannot rely on that vague phrase alone to justify a search. The police need specific indications of criminal activity.

In a recent case near Jacksonville, Florida, the police were patrolling a “high crime area” and saw a man standing in a driveway with his hands in his pockets. The police approached him and demanded that he remove his hands from his pockets. The man refused. The police then asked the man if they could search him, and he refused that as well. The police then patted him down, felt what they believed to be cocaine in his pocket, removed the item which was a bag of cocaine and arrested him for possession of cocaine.

The criminal defense lawyer filed a motion to suppress the evidence of the cocaine based on the illegality of the search. Being in a high crime area is not a basis for a search. In this case, assuming the suspect was in a high crime area, he was doing nothing else to indicate he was involved in criminal activity. When the police came up to him and demanded that he take his hands from his pockets, that becomes a seizure. In order for that to be valid, the police must have some specific evidence of criminal activity. The police can, at times, pat someone down if they believe the person may be armed and there is a police safety issues. But again, they can’t just pat anyone down in a “high crime area”. They still need something specific to indicate there is a danger.

Florida Statute of Limitations Does Not Run While Defendant is Continually Absent from the State

Published on: November 26, 2014 | by Lasnetski Gihon Law

In Florida, if the state believes a person has committed a crime, there is going to be a statute of limitations attached to that case. The statute of limitations in Florida means that the state has a certain period of time from the date the crime was committed to prosecute the case. With some exceptions, if the state does not prosecute the case within the required period of time, the criminal defense lawyer can file a motion to dismiss the charges. The number of years required by the Florida statute of limitations varies depending on the criminal charge, but two to four years is fairly common.

For instance, if the state believes a person committed a misdemeanor crime and four years passes before the state arrests the suspect, that would likely be a statute of limitations issue if the suspect has been living in the state of Florida for all or most of that time. The state is obligated to conduct a diligent search to find the suspect and bring charges against him in a timely manner. The state can check driver’s license records, utility records, traffic tickets and other methods to locate a suspect living in Florida. The reason behind the statute of limitations is that a suspect has a constitutional right to defend him/herself against criminal charges. If the state delays and takes too long to prosecute a suspect, witnesses may disappear or forget what happened which could compromise a defendant’s ability to present a defense.

There are exceptions to the statute of limitations, however. Another way to say this is that certain events may toll the statute of limitations, or stop the time from running. For instance, the state is not required to search for a person who is out of the state of Florida for an extended period of time. Therefore, if a suspect allegedly commits a misdemeanor crime in 2010 and then leaves Florida for three years and is ultimately arrested for the crime in 2014. The defendant may not be able to use the statute of limitations to dismiss the case.

Lasnetski Gihon Law named one of U.S. News and World Report’s Best Law Firms

Published on: November 12, 2014 | by Lasnetski Gihon Law

Lasnetski Gihon Law (formerly Lasnetski Gihon Law) was recently named as one of U.S. News and World Report’s Best Law Firms in the area of Criminal Defense – White Collar, Metro division, Tier 1. Click here to see the listing. You can see the methodology used by U.S. News and World Report here.