Jacksonville Criminal Lawyer Blog

Senator Proposes Changes to Federal Forfeiture Laws

Published on: August 6, 2014 | by Lasnetski Gihon Law

While people normally have a pretty good familiarity with criminal laws, they do not always understand how the forfeiture laws work. The federal government has forfeiture laws that allow the government to seize and keep the property of people for a variety of reasons. The government can take and hold someone’s property with very little evidence and judicial oversight for a long period of time. The burden of proof on the government to forfeit property is considerably lower than the “beyond a reasonable doubt” standard that applies in criminal cases. Therefore, the government can seize a person’s vehicle or a company’s operating account based on very little evidence and without a meaningful day in court for the claimant and then forfeit ownership of that property using the same low standard as in civil lawsuits. The state of Florida has similar forfeiture laws and procedures.

We have handled many forfeiture cases where the government or the state has seized property from clients based on assumptions and speculation alone and no specific evidence. In some of those cases, the claimant was not arrested, and criminal charges were never even considered. In other words, the government took their property with little or no evidence of criminal activity and no formal charges. In one case, more than a million dollars was taken from a bank account. We were able to recover the assets for our clients, but the process can be lengthy due to the advantages the forfeiture laws provide to the state and federal governments.

To put it another way, the forfeiture laws heavily favor the government, at least in the beginning of a case. There are avenues for a person or company to get his/her/its property back, but it is important to act quickly and consult a law firm that understands the law and procedures to properly handle a forfeiture case, whether in Florida state court or federal court.

Florida DUI Defendant Unable to Get Case Thrown Out When Police Corrupt DUI Video

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

In DUI cases in Florida, many people assume that the police car has a video camera that records the DUI investigation and arrest. The DUI video can be a good thing for a defendant if the defendant looks good on the video, and it shows that the police officer is exaggerating when he/she says the defendant was drunk. On the other hand, the DUI video can be problematic for the defendant if it shows the signs of impairment that the police officer indicated in his/her report and will testify to at the DUI trial.

As prevalent as video is these days, it should not be too much to ask for the police to record these DUI encounters. Because DUI arrests are so subjective (if the police officer thinks you are impaired from alcohol, you are probably getting arrested for DUI), it is important to have a DUI video so a jury can decide for themselves if the defendant was impaired rather than relying on the subjective memory of a police officer about an encounter that occurred months ago. Many police cars in the Jacksonville, Florida area do not have cameras. When we handle DUI cases with no video, we place the blame on the state since they have the burden of proof in DUI cases, and they have the capabilities to put video cameras in their police cars or bring a police car with a video camera to the scene.

In some cases, the police car has a video camera, but it does not record properly, it only records part of the DUI encounter or the video is lost. In a recent DUI case near Jacksonville, Florida, the police officer stopped the defendant and turned on his video camera. He went through the usual DUI investigation and ultimately arrested the defendant for driving under the influence of alcohol.

An Anonymous Tip of Drug Activity is Not Sufficient for a Search of a Residence in Florida

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

If the police want to search a house for drugs or other evidence of criminal activity, there are two primary ways they can do that. One, depending on how the the property is situated, the police can usually walk up to the front door, knock and ask to search the residence if someone answers the door. If the person who answers the door has apparently authority to give the police permission to search the residence, and does so, then the police can search the residence. Two, if the police have specific evidence that there are drugs or other evidence of criminal activity in the house, they can apply to a judge for a search warrant. If the judge signs the search warrant, the police can use that search warrant to search the residence.

Even where there is a search warrant, a criminal defense lawyer can still challenge the search in the subsequent criminal case. Search warrants are difficult to overcome in criminal cases because the criminal defense attorney is basically asking a judge to rule that the initial judge who signed the search warrant made a mistake. Judges do not like to do that. Even worse, the second judge already knows drugs or other criminal evidence were found in the house, otherwise there would not be a criminal case in which to file the motion to suppress.

But, every now and then, a criminal defense lawyer can successfully challenge a search warrant. In a recent case near Jacksonville, Florida, the police received an anonymous tip that the suspect was making and selling methamphetamine in his house. Normally, the police will then take steps to try and corroborate the tip- conduct surveillance outside the house, knock on the door and see if they can detect an odor or get someone to answer questions, check the trash on the side of the road and other law enforcement techniques. In this case, the police did some surveillance but did not see anything indicating there was drug activity at the house. They also checked the criminal histories of the occupants of the house and noted they had prior drug convictions. Based on this, the police went to a judge, got a search warrant, searched the house and found methamphetamine and drug paraphernalia inside.

Police in Florida Cannot Grab Suspect Without Reasonable Suspicion of Criminal Activity

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

The Constitution protects people from unreasonable searches and seizures in Florida. What constitutes a search and/or seizure is not always obvious. For instance, if the police pull you over while driving, that is clearly a seizure under the law. If the police start searching your vehicle after the stop, that is clearly a search under the law. However, some encounters with the police are not so obviously searches and seizures.

For a criminal defense lawyer trying to get evidence thrown out of a criminal case, the attorney must argue that the encounter was a seizure and/or search and that the police did not have specific evidence that the defendant was involved in criminal activity to justify the seizure and/or search.

In a recent robbery case near Jacksonville, Florida, the defendant had allegedly robbed a convenience store with a gun while wearing a mask. The cashier put the money in a bag, and the suspect left. The police searched the area and found the defendant on the street. He matched the description of the robber, but he was wearing different clothes. The police officer blocked his path and asked him to come talk to the officer. The officer then put his hands on the defendant’s chest and back to see if his heart rate was elevated. The police officer detained the defendant, searched the area and found evidence of the robbery in the nearby bushes. They also obtained statements from the defendant. The defendant was arrested for armed robbery.

Florida City Noise Ordinance Found to be Unconstitutional

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

Ocala, Florida, a city near Jacksonville, Florida, enacted a city ordinance that prohibited “unnecessary or disturbing noises”. Normally, this comes up when a person is playing loud music in his/her vehicle. An individual was cited in Ocala, Florida for violating this noise ordinance and appealed his case claiming that the law is unconstitutional.

More specifically, the ordinance prohibits loud, jarring, raucous or unusual noise which annoys, disturbs, injures or endangers the comfort, health, safety or peace or reasonable people within the city limits. A law, whether it is a city ordinance that can normally only result in a fine, or a criminal law that can result in jail time, is unconstitutional if it is vague and overbroad. A law is overbroad if it addresses constitutionally protected activities as well as unprotected activities. In other words, if the law is worded to broadly so that it covers too much conduct, more than necessary, it will be unconstitutional.

A law is vague if it does not precisely indicate to people what conduct the law defines as illegal. The Due Process Clause of the Constitution requires the government to make laws that specifically and clearly warn people what actual conduct is being criminalized. If the law is poorly written so that it is not clear what people should do and not do to avoid criminal activity, the law is unconstitutionally vague. With vague laws, the police and the state have a greater opportunity to arbitrarily or discriminately apply the law, and the Constitution specifically prohibits that kind of application of the laws. For instance, with a law like this, one might guess that the police in Ocala would be more likely to pull over a young person playing rap music than an older person playing Beethoven, if both were played at the same noise level.

Seizure of Substitute Assets in a Forfeiture Case in Florida

Published on: July 16, 2014 | by Lasnetski Gihon Law

The Florida forfeiture statute allows the government to take the property of people when that property was used in conjunction with certain criminal activity or represents the proceeds of certain criminal activity. As an example, if the police arrest someone immediately after a drug transaction and the defendant is found with $10,000 in cash upon the arrest, the police are going to take that money and attempt to forfeit by claiming it is the proceeds of illegal drug activity.

The government will attempt to forfeit a person’s property in many other situations, even when they do not even make any arrests or bring any criminal charges. If the state can establish by a preponderance of the evidence (50+%) that the property was used to facilitate certain criminal activity or is the proceeds of certain criminal activity, they may be entitled to keep that property.

What happens when the state believes a person made money from criminal activity but cannot actually trace that money that is the proceeds of the criminal activity? In those cases, the state will look for any other assets the suspect has and try to forfeit them as substitute assets.

Can Police in Florida Pull You Over if the Color of Your Vehicle Does Not Match the Color Listed on the Registration?

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

Many drug cases, DUI cases, gun cases and other kinds of criminal cases begin with a simple traffic stop in Florida. A police officer will make a routine traffic stop and then claim to observe signs that the driver is impaired from alcohol or smell the odor of marijuana or observe other suspicious signs of possible criminal activity. From there, a criminal investigation begins, and a much more serious police encounter results in an arrest.

When this happens, the criminal defense lawyer can file a motion to suppress any evidence of criminal activity that was obtained by the police officer after the initial stop if there is reason to believe the original stop of the defendant was unlawful. If successful and the court agrees that the original stop was illegal, then the evidence obtained after the stop will likely be thrown out followed by the criminal charges being dismissed.

In a recent marijuana case near Jacksonville, Florida, a police officer saw what he considered to be a suspicious green vehicle driven by the suspect. As they often do, the police officer ran the vehicle’s tag in his computer. His computer showed that the registration on the tag was for the same make of vehicle but a blue color. Based on the fact that the vehicle’s color did not match the color listed on the registration, the police officer stopped the vehicle. The police officer then smelled an odor of marijuana coming from the vehicle, searched it and found a large quantity of marijuana inside. The driver was arrested for felony possession of marijuana.

There is No Reasonable Expectation of Privacy in One’s Bank Records

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

We have written at length about various search and seizure issues including whether the police need a search warrant to conduct certain searches. As many people know, the Fourth Amendment protects people from unreasonable searches and seizures conducted by the government. However, in order to be afforded such protection, a defendant in a criminal case must establish that he/she had a reasonable expectation of privacy in whatever was searched. For instance, a person clearly has a reasonable expectation of privacy in his/her home so the police cannot just come in to search it without consent or a search warrant in most cases. As for a vehicle, a person normally has a reasonable expectation of privacy in his/her vehicle, however if he/she leaves what is clearly identified as marijuana on the seat where a police officer walking by can see it through the window, that might be a different story.

We recently discussed how a recent United States Supreme Court ruling requires the police to get a search warrant before searching a person’s cell phone or similar mobile device. However, people may not know that the Court does not believe a person has a similar reasonable expectation of privacy in his/her bank records. A person who deposits money into a bank and uses a bank credit card does not have a reasonable expectation of privacy in those bank records. This allows the government to obtain those bank records with only a subpoena (a document the government signs without a judge’s approval and without the suspect knowing about it) sent to the bank rather than a search warrant that requires probable cause and a judge’s approval.

Bank records are critical in a lot of criminal cases brought by the government. They can establish that a suspect deposited money in amounts and at times consistent with theft or fraud allegations. They can show wire transfers among co-conspirators. They can show credit card or withdrawal transactions that can put a person at a given location at a certain time. Bank records can establish a lot of critical points the government needs to make in order to prove a criminal case. Based on the current state of the law, the government can obtain those records without a search warrant in many cases.

Large Bank Receives Significant Fine But Still Clearly Getting Preferential Treatment Over Individuals

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

The Department of Justice (DOJ) and a state attorney’s office in New York recently obtained a settlement with BNP Paribas, a large bank based out of France that resulted in a huge fine against the bank. The bank was charged with falsifying bank records to allow it to use the American banking system to do business with forbidden countries such as Iran, Sudan and Cuba. The United States forbids companies from transacting with countries listed as rogues states by the United States government. The government was able to have BNP Paribas sanctioned with a significant fine- about $9 billion. However, BNP indicated it would easily be able to absorb the fine, continue to operate as usual and even continue paying its dividend for 2014. BNP Paribas reported approximately $50 billion in revenue last year, and while the stock price has declined since the announcement of the settlement, it is still well above its 52 week low.

Clearly, this was a significant fine, but BNP Paribas will come out just fine. However, it is important to note that no individual was indicted for this criminal activity. While the company’s conduct was serious enough to warrant an unprecedented fine, apparently it was not serious enough to charge any individual with a crime. Alternatively, when individuals are caught committing similar crimes outside the context of a well-capitalized company, they are most likely going to face criminal charges and prison time. As an example, last year an individual defendant was sentenced to federal prison for helping someone wire a few thousand dollars to an unknown recipient in a restricted Middle East country. The rules for corporations and individuals are still drastically different when it comes to committing major crimes.

Can an Out of State Medical Marijuana Verification Card or Prescription Be Used as a Defense to Possession of Marijuana in Florida?

Published on: July 4, 2014 | by Lasnetski Gihon Law

In Florida, as in other regressive jurisdictions, possessing the marijuana plant is still a crime. The Florida government still asks taxpayers to pay a lot of money to support the arrests, prosecutions and incarcerations of people possessing this plant. Until it becomes legal to possess marijuana, either for medical reasons and/or recreationally, anyone caught with marijuana assumes the risk of going to jail and ending up with a damaging criminal conviction. In possession of pills cases, a defendant has a complete defense to the charge if he/she can establish that he/she has a valid prescription for the pills with which he/she was caught. This does not normally apply to marijuana cases because medical marijuana is not yet legal and there are no valid Florida prescriptions for marijuana.

However, what if a person in Florida has a valid medical marijuana prescription from another state? In a recent marijuana case near Jacksonville, Florida, the police responded to a disturbance at the home of the defendant and found marijuana inside. She was arrested for felony possession of marijuana. Her criminal defense lawyer defended the case by claiming that she had a valid prescription for marijuana from California. At a hearing on the defendant’s motion to dismiss the charges, the criminal defense attorney submitted her California medical marijuana verification card.

The court noted several problems with the defendant’s prescription defense. First and foremost, the medical marijuana verification card indicated it was issued three weeks after her arrest. That effectively ended her prescription defense. However, even if the card preexisted the arrest, the defendant did not establish that the marijuana was purchased pursuant to her prescription. The defendant did not show the equivalent of a pharmacy pill bottle which could connect the marijuana to the prescription.