Jacksonville Criminal Lawyer Blog

Florida Search Warrant With Multiple Errors Upheld by the Court

Published on: November 10, 2014 | by Lasnetski Gihon Law

In a recent drugs and marijuana case near Jacksonville, Florida, the police received a tip of illegal drug activity at a particular apartment. They conducted surveillance on the apartment and observed what they considered to be suspicious activity. They ultimately obtained a search warrant to search the apartment for drugs. The conducted the search and found marijuana and guns inside.

The criminal defense lawyer challenged the search because the search warrant had several errors in it. A search warrant must describe the place to be searched with specificity. In this case, the search warrant had the wrong street number, the wrong street name and the wrong directions to the apartment. The police presumably were still able to locate and search the correct apartment because the police were familiar with it from previous surveillance.

The purpose of requiring a proper and specific description of the place to be searched in a search warrant is to make sure the police do not have a general license to go searching a wide range of places with one warrant. A specific location is included in the warrant so it is clear that the police are only permitted to search that one specific place. Additionally, the description is important so the police actually search the correct place. If the description or other parts of the search warrant are inaccurate, the search warrant may get thrown out. If that happens, the evidence the police found as a result of the search may not be used against the defendant in court.

Florida Child Molestation Conviction Reversed Due to Potential Juror Intimidation

Published on: November 7, 2014 | by Lasnetski Gihon Law

In a recent lewd and lascivious child molestation case in Jacksonville, Florida some unorthodox activity in the courtroom caused the appellate court to reverse the jury’s guilty verdict on those child molestation charges. Apparently, a biker gang wearing “Bikers Against Child Abuse” jackets congregated outside the courtroom in the presence of the jury before and during the trial and also attended the trial, although without the jackets. After the defendant was convicted of child molestation, the criminal defense lawyer appealed the verdict alleging that the presence of the bikers with the obvious anti-defendant message was designed to intimidate, and had the effect of intimidating, the jury into finding the defendant guilty. The appellate court agreed this conduct deprived the defendant of a fair trial, reversed the conviction and gave him a new trial.

One of the protections afforded to defendants by the Constitution is the right to a fair trial. This means that, in order to convict a defendant of criminal charges, the state has to prove its case beyond a reasonable doubt. The state must meet that burden by presenting evidence that proves the defendant committed the crime. The state cannot rely on any extraneous factors to help it win the case. For instance, any outside influences that might sway the jury are not permitted in court or anywhere that might have an affect on the jury. This includes people in or near the courtroom that might intimidate the jury or influence them with messages of any kind. A trial is like a closed laboratory. The jury can only rely upon those things the law allows a jury to rely upon to make its decision. Those things are the witnesses testifying under oath, any exhibits admitted into evidence, the law provided by the judge and the arguments of the attorneys. The jury cannot go home at night and investigate on the internet or in any other manner. The jury cannot resort to any outside influences at all. And no outside influences can do or say anything during the trial that might affect the jury’s decision. If there is an outside influence that is likely to affect the jury, either side can ask the judge for a mistrial so the defendant can have new trial with a new jury.

In Florida, Police Usually Need an Arrest Warrant to Make an Arrest for a Misdemeanor Outside His/Her Presence

Published on: October 23, 2014 | by Lasnetski Gihon Law

In Florida, the police cannot just arrest any person he/she has probable cause to believe has committed a crime. A police officer does not need an arrest warrant signed by a judge to arrest a person for a felony charge or a misdemeanor that has occurred in his/her or another police officer’s presence. However, a police officer cannot always arrest a person for a allegedly committing a misdemeanor crime that he/she or another officer did not see unless a judge has signed an arrest warrant. One exception is shoplifting or retail theft cases. Most shoplifting/retail theft cases occur in a store where a loss prevention officer or other store employee sees the theft or observes the suspect trying to leave the store without paying for an item(s). The loss prevention officer normally detains the suspect until the police arrive. Although the police officer was not present when the shoplifting crime allegedly occurred, the police officer is allowed to rely on the store employee’s statement and any other evidence (such as a store video) to make an arrest without first getting an arrest warrant. On the contrary, if a witness approached a police officer and said a suspect was in possession of a small amount of marijuana (less than 20 grams of marijuana) and even showed the police officer recent incriminating pictures, the police officer could not arrest the suspect without an arrest warrant if the officer did not observe the marijuana.

In a recent shoplifting case near Jacksonville, Florida, a loss prevention officer at a department store observed the suspect select some items and leave the store without paying for them. The loss prevention officer, who is not a police officer, called the police and gave a description of the suspect and his vehicle to the police officer. The police officer stopped the suspect and arrested him for shoplifting. While searching the vehicle for the stolen items, the police officer found methamphetamine. The suspect was arrested for petit theft (a misdemeanor) and possession of methamphetamine (a felony).

The criminal defense lawyer moved to dismiss the charges arguing that the police officer could not stop and arrest the defendant for a misdemeanor charge outside of the police officer’s presence. However, Florida law has a specific exception to this rule for shoplifting. Since the police officer could stop the suspect for the shoplifting charge and had a right to search for the stolen items, the shoplifting charge and the methamphetamine possession charge were both valid.

Florida Police Needed a Search Warrant to Track a Suspect’s Cell Site Location

Published on: October 20, 2014 | by Lasnetski Gihon Law

In Florida, a person has a Constitutional right to be free from unreasonable searches and seizures. Sometimes this is obvious. A police officer cannot just search a person’s home or car without consent or a search warrant in most cases. However, it can also get complicated as old rules may be difficult to apply to newer technologies.

In a recent trafficking in cocaine case near Jacksonville, Florida, the case started as most drug cases do with a confidential information telling police that the defendant was moving large quantities of cocaine throughout the area. The informant indicated he had phone conversations on the suspect’s cell phone where large cocaine transactions were discussed. With this information, the police obtained a pen register and trap and trace device on the suspect’s phone with a court order. The pen register records the phone numbers dialed from that phone. The trap and trace device records the phone numbers of incoming calls to the phone.

The informant later told police that the suspect was going to make a large drug deal on a particular date. Without getting a court order, the police obtained information from the suspect’s cell phone provider that helped the police track the defendant’s real time location through his cell phone. Cell phones give off information as to its location that police can use to track a person with the cell phone. The police successfully located the suspect through his cell phone and stopped him. They found a kilogram of cocaine in his vehicle and arrested him for trafficking in cocaine.

Criminal Conviction Reversed in Florida When Prosecutor Elicits Testimony Regarding a Defendant’s Failure to Produce Evidence

Published on: October 17, 2014 | by Lasnetski Gihon Law

In Florida, defendants in criminal cases have certain Constitutional rights that stay with them from the time they are arrested until their trial, if they choose to have one. One of those rights is the right to be considered innocent unless and until the state proves the defendant’s guilt beyond a reasonable doubt. Many people are familiar with that right as it is one of the few things the TV shows get right, and it is a primary right that most people hear about along the way. But what does it mean?

When a person is charged with a crime in Florida, that person is entitled to a trial whereby a jury or judge decides whether the defendant is guilty or not guilty. At that trial, the defendant is presumed innocent. Only after the state presents sufficient evidence of the defendant’s guilt, if the state ever does, does that presumption of innocent disappear. Because a defendant is presumed innocent and the state has the burden of proving the defendant’s guilt beyond a reasonable doubt, the defendant and the criminal defense lawyer do not have have to present any evidence or provide any testimony to ensure a not guilty verdict. Of course the criminal defense attorney can put on as much evidence and testimony as he/she wants to support the defense, but he/she does not have to. If the defense puts on no evidence and merely decides to attack the state’s evidence, the defendant must be found not guilty if the state never meets its burden of proof.

In conjunction with these rights and procedures, the state cannot state or imply to a jury that the defendant is supposed to present evidence proving he/she is not guilty. The state cannot make any comments about a defendant who either did not testify in court or refused to talk to police before the trial. The state cannot argue to the jury that the criminal defense lawyer failed to present evidence showing the defendant is not guilty.

There is a Difference Between Reckless Driving and Careless Driving in Florida

Published on: October 13, 2014 | by Lasnetski Gihon Law

In Florida, there is a critical difference between careless driving and reckless driving, and that difference can be significant when it comes to what the state can do to punish a driver based on his/her driving. Careless driving in Florida is not defined well, but the statute discusses the obligation to drive in a careful and prudent manner with regard to all of the circumstances so as not to endanger the life, limb or property of another person. Reckless driving in Florida is defined as driving in a manner that knowingly disregards the safety of other people and property. For driving to be reckless, the manner of driving must be likely to cause death or serious bodily injury to another. Based on those definitions, it is hard to get a clear picture of the difference between careless driving and reckless driving. However, the effects can be severe.

If we are just talking about the driving, careless driving is a simple traffic ticket and a fine. Reckless driving is a criminal charge that can come with jail time. The state often considers driving careless driving when a person violates one or two traffic laws or possibly causes an accident while violating one traffic law. Reckless driving normally requires much more egregious driving. However, when a serious accident involving injuries or a death is involved, the state is more likely to err on the side of a criminal charge, i.e. reckless driving. This is where the difference can become very serious. If a person is driving recklessly and causes an accident that results in death, he/she will likely be charged with vehicular manslaughter which is very likely to result in prison time. Careless driving that results in a serious accident and death may only come with fines and driving school.

So, the question is: what is the practical difference between careless driving that has minimal punishments and reckless driving that can result in a felony conviction and a lengthy prison sentence if the accident is serious enough? It just depends on the circumstances. In a recent case south of Jacksonville, Florida, the defendant was driving 83 miles per hour on a two lane road where the speed limit was 55 miles per hour. He crashed into a vehicle making a left turn in front of him and killed one of the occupants. The state charged him with vehicular manslaughter alleging that driving that fast on that road was reckless driving. The court ultimately discharged the vehicular manslaughter charge because merely speeding in that area was not sufficient to prove reckless driving. Therefore, the defendant could not be charged with vehicular manslaughter.

Florida Police Were Not Permitted to Search Hotel Room For Drugs With Occupant’s Permission

Published on: October 10, 2014 | by Lasnetski Gihon Law

The Constitution establishes privacy rights, and one of the more sacred privacy rights protects people from unreasonable searches and seizures when it comes to their property. For instance, in most cases, the police are not allowed to go into a person’s residence without a valid search warrant or consent from the person who lives at the residence. The rules are somewhat different when it comes to hotel rooms. The police cannot just walk into a hotel room that is being rented by a hotel customer. Likewise, the police cannot merely get consent from the hotel owner or employee to go into a hotel room that is being rented by a hotel customer. The police must either have a valid search warrant or get permission to enter and search a hotel room from an authorized person who rented or is staying in the room.

In a recent drug case near Jacksonville, Florida, hotel management received an anonymous tip that the occupants of one of the hotel rooms had cocaine in the room. The hotel manager called the police. The police went to the hotel, got the room number and the name of the suspect who rented the room and then proceeded to the room. The police officers knocked on the door, and an individual answered. The police officers asked the individual if they could come in to search the room, and he agreed. Inside the room, the police found cocaine and drug paraphernalia. The defendant, who was the one who actually rented the room but did not answer the door, was arrested for possession of cocaine and possession of drug paraphernalia.

The criminal defense lawyer filed a motion to suppress the evidence of the cocaine found in the room based on the argument that the police did not have a legal basis to enter the room. The court agreed. The police cannot enter a hotel room without a search warrant or permission from an authorized person or a person with apparent authority to give the consent. Some guy staying in the room with the person who rented the room is not someone with authority to give the police consent to enter and search the room for drugs. The state tried to argue that the person who answered the door had apparent authority to give consent. The police can rely on someone who appears to live in a residence or to be staying in a hotel room to give authority to enter and search. However, in this case, the police knew the name of the person who rented the room, so it was as simple as the police asking the person who answered the door whether he was the person whose name was on the room registration. Because they didn’t do that basic investigation, they could not rely on the guy’s apparent authority to give consent. Since the police did not have legal justification to enter the room, the cocaine they found inside was suppressed.

Florida Police Lose Armed Robbery Case by Illegally Searching Trunk of Car

Published on: October 1, 2014 | by Lasnetski Gihon Law

In a recent armed robbery case west of Jacksonville, Florida, three suspects entered the victim’s home and stole certain items from him at gunpoint. The three suspects fled in a vehicle, and the victim called the police providing a description of the suspects and the vehicle. Shortly thereafter, a police officer saw a vehicle with three occupants that matched the descriptions given by the victim. The police officer stopped the vehicle and detained the occupants by handcuffing them and placing them in his police car. The police officer looked in the passenger compartment of the vehicle through the windows and did not see any evidence of the armed robbery. The police officer then opened the trunk and searched it. The police officer found a gun and drugs in the trunk. Based on this evidence, the police officer searched the passenger compartment more closely and found the items stolen in the armed robbery. Each of the occupants was arrested for armed robbery.

The criminal defense lawyers filed a motion to suppress all of the evidence arguing that the search of the trunk was illegal and that illegal search led to the subsequent search, thereby making it illegal as well. When the police stop someone in a vehicle and detain or arrest that person, they can no longer search the vehicle if the suspect is secured and no longer a threat to the officer. In the past, the police could conduct a “search incident to arrest” which was an automatic search of a car when the driver was arrested. The law changed, and now if the driver is secured, i.e. handcuffed and in the police car, that driver obviously is not a threat to the officer so the officer cannot just search the car for protection. If the police officer does have some specific reason to believe there is some danger, the police officer can search the car as a protective sweep. However, without that specific evidence of danger, the police officer can no longer search a vehicle just because the driver was arrested.

In this case, the police officer testified that he searched the trunk because he thought there might have been a suspect in the trunk. This was easily rejected by the court. A mere suspicion without any supportive facts is not going to be a legal basis for a search. A police officer must have a specific indication of evidence, danger or criminal activity to satisfy the search and seizure provisions of the Constitution.

Anonymous Call Was Not Sufficient to Stop Defendant in Florida

Published on: September 28, 2014 | by Lasnetski Gihon Law

In Florida, the police are not allowed to stop a vehicle without probable cause to believe the person committed a traffic violation or at least reasonable suspicion of criminal activity. Most stops are easily justified by the police with testimony that the driver was speeding, ran a red light or in violation of any other traffic law. However, if the police officer wants to stop a vehicle for another reason, the police officer must articulate a specific legal basis to do so.

In a recent case near Jacksonville, Florida, the police received an anonymous call of a disturbance at a residence. The caller neither provided his name nor any specifics as to criminal activity. The police officer arrived at the location as the defendant was driving away. The police officer motioned for the defendant to stop his vehicle and drove in front of it, blocking its path. Thereafter, the police officer recognized the driver as someone on probation whose driver’s license was suspended and arrested him.

The criminal defense attorney filed a motion to suppress arguing that the police officer had no legal basis to stop the defendant who was driving away. When the police officer stopped the defendant and blocked his vehicle, this was considered a seizure under the law. The police officer must have a legal basis to effect such a seizure, such as specific information that the defendant was involved in criminal activity at the time.

Police Officer Justified in Searching Pill Bottle in Florida Drug Case

Published on: September 25, 2014 | by Lasnetski Gihon Law

In Florida, the police are not permitted to search a person’s belongings unless the police officer has consent to search from someone authorized to provide such consent, the officer has probable cause in certain circumstances or the officer has a search warrant. Police officers often assume they can search a pill bottle because they believe there will be illegal drugs inside, but the existence of a pill bottle does not automatically entitled a police officer to search it.

In a recent case near Jacksonville, Florida, the police officer stopped the defendant driver for driving erratically. Upon approaching the defendant’s vehicle, the police officer asked the driver if he could search his vehicle. The defendant agreed. The police officer found a pill bottle next to the driver’s seat. The police officer noted the bottle had the driver’s name on it and drug information for the drug Suboxone. However, the police officer said he could see into the bottle and recognized that one of the pills was Xanax and he did not recognize the other pill. Because the Xanax pill did not match the drug description on the bottle, the police officer opened the pill bottle and ultimately determined that the other pill was Oxycodone. The driver was arrested for possession of Oxycodone and Alprazolam (Xanax).

The criminal defense lawyer filed a motion to suppress the evidence of the Xanax and Oxycodone arguing that the police officer did not have a legal basis to search the pill bottle. Consent to search the car is not the same as consent to search every container within the car. The question, then, was the police officer had probable cause to search the pill bottle without permission. The court ruled that the police officer did have a legal basis to search the pill bottle. Assuming the police officer’s testimony to be true, because the police officer could see that the pills in the bottle did not match the description of the pills on the bottle, there was reason to believe the defendant was in possession of drugs without a proper prescription. The court basically ruled that if a person has pills in a container that is not designated for that particular drug, the police will have a right to search the container and make an arrest. As a result, the conviction for possession of Oxycodone and Xanax was affirmed.