Jacksonville Criminal Lawyer Blog

Florida Court Finds Government Forfeiture of Home Used to Cultivate Marijuana is Unconstitutional

Published on: September 22, 2014 | by Lasnetski Gihon Law

The War on Drugs rages on with big government-loving police and prosecutors seeking to take property from citizens for their involvement with the marijuana plant. In a recent case near Jacksonville, Florida, the War on Drugs manifested itself in the government’s attempt to take a house from a person for growing some marijuana plants and seeling marijuana. Fortunately, the appellate court determined that this excessive display of big government overreach was unconstitutional as it violated the Eight Amendment to the Constitution.

The Florida forfeiture laws, which we have dealt with over and over again, allow the police to take property, and keep property, that was involved with, or has some close relationship to, certain criminal activity. Unfortunately for humanity and civilization, marijuana crimes are included among those that trigger the Florida forfeiture laws and allow the state to take property from people.

In a recent case near Jacksonville, Florida, an individual was convicted of manufacturing and selling marijuana out of his home. As part of that criminal case, the defendant was sentenced to a form of probation, community service and drug treatment. The local government also initiated forfeiture proceedings to take ownership of the house where the marijuana was found. The house was valued at approximately $250,000. The local judge agreed and let the government take the house. However, the case was appealed, and the appellate court overruled the judge.

In Retail Theft/Shoplifting Cases in Florida, the Sale Price Controls the Value of the Stolen Item

Published on: September 19, 2014 | by Lasnetski Gihon Law

In Florida, everyone understands that stealing items from a store is a crime. However, what may not be clear is that the conduct may be a misdemeanor or felony depending on the value of the item(s) stolen. Even less clear may be how that value is determined. This can be a critical issue in a defendant’s theft case because, in all likelihood, it is going to be much easier and much better to resolve a case in misdemeanor court than felony court. Misdemeanor crimes in Florida are those crimes that can result in a punishment of 12 months in jail or less. Most often, misdemeanor crimes such as petit theft result in no jail time, although it depends on the circumstances of the case, the defendant’s criminal history and other factors. Felony crimes in Florida are crimes that can result in a punishment of more than 12 months in prison. Felony prosecutors and felony judges routinely determine that defendants in their courtrooms deserve incarceration. Additionally, felony convictions come with the loss of certain rights that are not applicable in misdemeanor cases.

In Florida, the crime of shoplifting or theft is a misdemeanor crime if the value of the property is less than $300. If the value of the property is $300 or more, it is a third degree felony, and the crime becomes more serious as the value of the property increases. The value of the property in retail theft cases means the sale price of the merchandise at the time the property was taken. This is normally determined by the price on the price tag when the property is taken. Sometimes the police and/or prosecutors are confused about this. This can work to a defendant’s advantage or disadvantage. For instance, a clothing store may mark up the value of an item significantly. A shirt that sells for $100 may have a market value or wholesale value of much less. However, if a person steals three of them, he/she may be facing a felony theft charge even though the store paid much less than $300 for the three shirts.

On the other hand, consider a case we had several months ago at Lasnetski Gihon Law here in Jacksonville. In December, a client went to a department store and stole several items. The loss prevention officer stopped him/her and recovered the stolen items. To determine the value of the stolen items, the loss prevention officer went to the store computer to determine the price at which the items normally sold. Using those figures, the total value came to close to $400, and our client was arrested for felony theft. Everyone knows that department stores advertise huge sales in December and mark the merchandise down significantly during that time. We checked the sale prices for similar items and determined that the sale prices on these items totaled closer to $250, which would make the crime a misdemeanor. The arresting officer simply relied on the inflated value figures from the store’s loss prevention officer, but a little investigation revealed the true figures applicable in a retail theft case were much lower. That was the difference between a felony charge and a misdemeanor charge for the client.

In Florida, Defendant Must Know An Accident Occurred to be Guilty of Leving the Scene of an Accident

Published on: September 3, 2014 | by Lasnetski Gihon Law

In Florida, if a driver is involved in an auto accident that results in property damage, an injury or death, that driver is required to remain at the scene of the accident and provide certain information such as driver’s license and insurance information. If the driver is involved in an auto accident and leaves the scene, that driver can be charged with a misdemeanor crime or felony crime depending on the severity of the crash. If the accident just resulted in property damage, it is a misdemeanor crime. If the crash resulted in a serious injury, it is a felony crime. If the crash resulted in a death, it is a first degree felony which is the most serious felony crime in Florida. The idea is that people who get into auto crashes need to be held accountable, whether they were impaired from drugs or alcohol or whether they or their insurance company need to pay for the damage caused by the crash. When a person leaves the scene of a crash, the crash cannot be properly investigated and that person cannot be held accountable. The state assumes the person fled the scene because he/she was doing something illegal at the time, usually driving while impaired from alcohol or drugs.

It seems obvious, but in order to prove a person is guilty of leaving the scene of an accident, the state must prove that the driver knew he/she was involved in a crash. In most cases, that is easy, but there are cases when it is not so clear. At night, on a dark street, a driver may hit a pedestrian who walks into the street and think it was an animal or a pothole or something else. If the radio is on or a driver does not hear well, it may not be obvious that a person hit someone or some thing in some cases. In a leaving the scene of a crash case, there may be a defense that the driver did not know of the crash. If the state can only prove the driver should have known about the crash, that is not sufficient for a conviction under Florida law.

Where Police Intercept Defendant’s Phone Calls in Foreign Language, Whose Translation is Used in Court?

Published on: August 31, 2014 | by Lasnetski Gihon Law

In some of the bigger trafficking in drugs and other drug cases, one major component of the state’s case may be phone calls of the defendant that were intercepted and recorded. These phone calls intercepted without the defendant’s knowledge are often critical pieces of evidence as they may involve the defendant discussing drug deals in his/her own voice, or at least discussing logistical issues with other co-defendants or confidential informants.

When the intercepted phone calls are in English, the state will normally just play the recordings at the trial for the jury to hear and draw their own conclusions as to what was said and what was meant on the calls. How is that information conveyed to a jury when the phone calls are in another language?

In a recent trafficking in heroin case south of Jacksonville, Florida, the police had recorded many phone calls involving the defendant and his co-conspirators where various drug transactions were discussed. The police used their detectives to transcribe the calls and used those transcripts their police officers prepared as evidence of the phone calls at the trial. The criminal defense lawyer objected to using the police officers’ transcriptions of the phone calls arguing that they were not objective. As one might expect, transcripts of phone calls involving the defendant with his co-conspirators can be very damaging evidence at a trafficking trial. If the police officer, who obviously believes the defendant to be a drug trafficker, interprets some vague aspects of the recordings against the defendant, it could be the difference between a conviction and an acquittal. Many of these recordings are of good quality, but some are not and even the good ones will have periods where it is difficult to hear what is being said.

$5,000 Fine in Florida Solicitation of Prostitution Case Found to be Unconstitutional

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

In a recent case near Jacksonville, Florida, the defendant entered a no contest plea to solicitation of prostitution. The crime of solicitation of prostitution occurs when a person offers to engage another person in sexual activity for hire. It is considered a minor second degree misdemeanor crime in Florida. In this case, the judge sentenced the defendant to probation and community service but also added a $5,000 fine. In most misdemeanor cases, including more serious misdemeanors, there is either no fine or a much smaller fine (court costs are another matter). For second degree misdemeanors, $500 is normally considered the highest end for fines, and many cases result in no fines. However, the prostitution statute specifically mandates a $5,000 fine for defendants who are convicted of, or enter guilty or no contest pleas to, the charge of solicitation of prostitution. So, while it is definitely unusual for a judge to impose such a large fine for a crime that is considered relatively minor, this fine is actually in the statute.

Because of the unusual nature of the fine, the criminal defense lawyer appealed the sentence to a circuit court judge claiming that it violated the Eighth Amendment to the Constitution. The Eighth Amendment provides that a judge shall not impose a sentence that is cruel and unusual and specifically prohibits imposing excessive fines. Eighth Amendment challenges to criminal sentences rarely work. If a sentence is legal under the Florida laws, or federal laws in federal cases, chances are an appellate court is not going to rule that the sentence is excessive or cruel and unusual.

However, this case was an exception. A fine used as a punishment is considered excessive if it is grossly disproportionate to the severity of the crime. In other words, judges are not permitted to impose very high fines for minor criminal conduct. In this case, the appellate judge ruled that the $5,000 fine was excessive and unconstitutional, even though it was specifically mandated in the statute. Since finding a statutory provision unconstitutional is a fairly drastic and uncommon event, it is certainly possible that a higher appellate court will take up this issue.

Police in Florida Can Request Identification But if They Hold Onto it, it Becomes a Detention

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

In Florida, the police do have the right to approach people and suspects on the street and ask questions. The police do not need reasonable suspicion or probable cause that a person is engaged in criminal activity to approach someone and ask questions. This includes asking for identification like a driver’s license. However, what happens next can turn a police encounter into a detention or seizure. If a police encounter becomes a detention or seizure under the search and seizure laws, the police need to show specific evidence indicating criminal activity in order to detain a person, search the person and even ask the person if he/she would consent to a search.

The primary issue is whether the subject reasonably believes he/she is free to leave. If a judge finds that a reasonable person would have felt free to leave the encounter, that is not a detention, and the police are free to ask questions. For instance, when a police officer approaches a person on the street, that police officer is free to ask questions and ask for ID since, at least theoretically, the person is free to walk away. On the other hand, if the person provides his/her driver’s license and/or other property like a wallet, and the police officer does not return the property, that person does not reasonably believe he/she is free to leave. It is not reasonable for a person to believe he/she can walk away from a police encounter when the police officer still has his/her property.

Therefore, when a police officer approaches a person and ask questions, that person is free to refuse to answer and/or walk away. If the police officer does not let the person leave, then it likely becomes a detention that requires evidence of criminal activity. If the person provides an ID or other property to the police officer, and the officer keeps it for a period of time, the encounter also likely becomes a detention because a person will normally feel compelled to stay to retrieve his/her property.

When Can Police Officers in Florida Use Deadly Force?

Published on: August 18, 2014 | by Lasnetski Gihon Law

With the events in Ferguson, Missouri all over the news, there is a lot of information, and a lot of misinformation, about when a police officer can use deadly force against a person. By deadly force, at least in Florida, we mean force that is likely to cause death or a serious injury. An obvious example would be when a police officer shoots someone.

In Florida, a police officer can use deadly force in certain situations. Like anyone else, a police officer can use deadly force if it is reasonably necessary to do so for self defense or to protect another person from imminent serious injury or death. More specific to a police officer’s duties, a police officer may use deadly force if necessary to prevent a person from escaping jail, prison or custody while he/she is awaiting trial. A police officer can also use deadly force to arrest someone fleeing from a crime if the police officer reasonably believes the suspect is a threat to him/herself or others or if the officer believes the suspect is fleeing a crime involving the infliction or threat of infliction of serious harm to others.

The deadly force law in Florida gives a police officer a lot of leeway in using deadly force against suspects. The law is clearly not limited to situations where self defense or defense of others is an issue. A police officer in Florida is allowed to use deadly force in many situations where the suspect is believed to be escaping certain situations, without of course, having to meet the high evidentiary standard used in criminal cases

Police in Florida Cannot Always Search a Suspect’s Cell Phone During a Valid Arrest

Published on: August 15, 2014 | by Lasnetski Gihon Law

In Florida, it is a general practice among police officers to search a person after that person has been lawfully arrested. While most searches require consent of the person being searched or a valid search warrant, one exception is the search incident to a lawful arrest. At a minimum, this exception allows the police to search a person once he/she has been arrested. This exception also generally allows the police to search a person’s belongings that he/she has on him/her at the time of the arrest. One of the primary reasons for a search incident to a valid arrest is that the police officer is preparing to place the suspect into his/her custody, drive him/her to the jail and then process him/her into the jail. Therefore, the police have a right to make sure the suspect does not have any weapons or anything else that might harm the officer or create a dangerous situation.

Over the years and as cell phones have become more and more prevalent, police officers expanded this exception to go through a person’s cell phone to look for incriminating evidence. As we all know, a cell phone is capable of storing all sorts of information about a person, his/her contacts and his/her activities including phone numbers, emails, text messages, photographs, and many other items. A cell phone could potentially bring all sorts of information to the police and be the basis for many new charges. Initially, courts were allowing these spontaneous searches by finding that police officers can search just about anything found on a person at the time of his/her arrest.

Fortunately, these warrantless searches were being challenged enough that some rational constitutional arguments started to win out. The Constitution provides that people have a right of privacy in their belongings. It is one thing to allow a police officer to search a person and his belongings after an arrest to make sure there are no safety issues. However, there clearly is not an immediate safety concern with the information stored on a cell phone. Ultimately, the courts seemed to recognize this and required the police to have consent or a search warrant to search a person’s cell phone in his/her possession upon arrest.

In Suspected Florida Pill Mill Case, How Does the Court Deal With Confidential Patient Records?

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

Over the last several years, local, state and federal law enforcement agencies have focused on shutting down what they call “pill mills” and arresting and prosecuting many people involved with these alleged pill mills from office staff to doctors to owners. A “pill mill” is a pain management clinic that sees a lot of patients and dispenses pain killers such as Oxycodone and Oxycontin in large quantities without a proper examination and doctor patient relationship. We have seen many of these cases in Florida and Georgia and defended doctors and clinic owners in these cases.

The police will hear about these alleged pill mills and start their investigation in a number of ways. They will conduct surveillance outside the clinic and see how many people are going in and out of the clinic in a given day, and how quickly. They will send in undercover officers pretending to be patients looking for quick access to pain killers and document what kind of encounters they have with the doctors, if any. They will interview patients to see what kind of evaluation and discussion they had with the doctors. Ultimately, if the police believe they have sufficient evidence that the clinic is a pill mill, they will get a search warrant and seize all of the medical records at the facility.

This presents a problem because a person’s medical records are confidential, and it is unclear that the police can obtain a person’s medical records without proof that this person was involved in illegal activity. Even if a clinic is operating as a pill mill, that does not mean all of the patients are involved. If the police come in and take all of the patients’ records, it is likely that they are taking medical records of patients who have nothing to do with the investigation. That violates medical privacy laws.

Prosecutor Could Not Admit Evidence of Conversation Between Defendant and Psychotherapist in Florida Criminal Case

Published on: August 9, 2014 | by Lasnetski Gihon Law

In Florida, there are certain privileges a defendant has in a criminal case that preclude the prosecution from presenting evidence to the jury. For example, private conversations between a defendant and his/her attorney, doctor, psychologist or psychiatrist and other specified individuals are privileged and cannot be discovered or admitted into evidence by the state. These conversations must generally be kept private at the time they take place. For instance, if you see your psychologist at a party and have a conversation with him/her in front of other people, that conversation may lose its privileged status. On the other hand, if you have a regular private appointment with a psychologist, it is highly unlikely the state could ever learn what was said during that meeting or be able to use anything said against the defendant in a criminal case.

These privileges remain intact even if someone overhears the discussion as long as the defendant had a reasonable expectation that the conversation was private. In a recent assault case near Jacksonville, Florida, the defendant was taken to the hospital after he was arrested. In the emergency room, doctors approached him and asked him a variety of questions about his condition and the incident that led to his arrest. Because the defendant was under arrest at the time, a police officer was nearby guarding him. The defendant made some incriminating statements to the doctors that the police officer overheard and conveyed to the prosecutors. The prosecutors sought to have the police officer testify to those statements at the trial.

The criminal defense lawyer filed a motion to exclude the statements at trial arguing that they were privileged statements between the defendant and his doctors. The state argued that the privilege did not apply because the defendant made the statements in the presence of the police officer.