Jacksonville Criminal Lawyer Blog

Supreme Court Holds That Police Need Search Warrants to Search Cell Phones

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

In Florida, we have seen many cases where the police will look into a person’s cell phone before or after an arrest without a search warrant or even without probable cause to believe that there is incriminating evidence in the cell phone. Cell phone evidence has been used in court to incriminate many defendants, particularly in drug cases. However, a recent case was before the United States Supreme Court that challenged the state’s right to search a person’s cell phone without a search warrant. The government largely relied on the argument that the police can search a person’s pockets to make sure they are not armed or in a position to destroy evidence without a search warrant. The state argued that cell phone content can be easily deleted so the police should have a similar ability to search a person’s cell phone without taking the time to get a search warrant during which a defendant can remove incriminating information.

The Court disagreed and found that a person has a Constitutional right to privacy in his/her cell phone and other devices such as an Ipad or similar mobile device that stores information. The quantity and type of information people keep on their cell phones deserve privacy protection just like tangible items people keep in their vehicles and homes. As a result, except in very limited circumstances, if the police want to search someone’s cell phone or similar mobile device, they need to get a search warrant signed by a judge to do so. This is true even after an arrest where the cell phone or mobile device is in the possession of the person arrested and easily accessible by the police.

Florida Defendant in Drug Case May Not Be Able to Discover Identity of Confidential Informant

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

A fair number of drug cases in Florida initiate after someone gives the police information about someone selling or possessing drugs. These informants are often people who were arrested themselves and provide this incriminating information to the police to help them in their own case. The police may take this information and conduct surveillance, make some undercover drug buys and/or get a search warrant. When a drug arrest is made and drug charges are filed, it is rare for the state to disclose the name of the confidential informant, or CI, who provided the information that started the case. A criminal defense lawyer can request the information, but the judge may ultimately have to decide whether the state has to disclose the CI’s identity to the criminal defense attorney.

In a recent trafficking case near Jacksonville, Florida, a confidential informant gave information to the police that allowed them to get a warrant to wiretap the defendant’s phone. The police used the information from the defendant’s phone to make several drug trafficking arrests. The criminal defense lawyer field a motion to force the state to disclose the identity of the confidential informant so the criminal defense attorney could question him/her who may be a material witness.

Florida law protects the identity of confidential informants because they are important tools for the police to gain access to drug dealers and they place themselves in a dangerous position. Keeping them confidential encourages CI’s to come forward to the police with information about drug activities. As a result, the general rule is that the state does not have to disclose the identity of a confidential informant to the criminal defense lawyer.

In Florida, There is a Key Difference Between Being Present for a Crime and Helping The Criminal Activity

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

In Florida, a person does not commit a crime by being present when someone else commits the crime and knowing the crime was committed. However, a person can be guilty of a crime if he/she did not actually commit the crime but assisted the perpetrator during or after the crime. That is called being an accessory to the crime and can result in serious felony penalties.

For instance, if two people go to a park and Person A robs the victim. Person B is there when the robbery took place and ran with Person A after the robbery. That alone does not make Person B guilty of robbery or accessory to robbery. If the state cannot prove that Person B knew Person A was going to commit the robbery, Person B had no involvement in facilitating the robbery and Peron B did nothing to help Person A escape from the robbery, Person B would not be guilty of a crime. Of course, the state might still charge Person B for the crime and it may ultimately come down to what the jury believes, but mere presence at a crime is not sufficient to prove commission of the crime.

Add one more fact, and Person B would be guilty of a crime. Assume Person A planned to commit the robbery without Person B’s prior knowledge, Person B sees it happen and after the robbery both Person A and Person B run away. They both run to a car, and Person B drives Person A away from the scene of the robbery. This now becomes a situation where Peron B helps Person A get away from the scene of the crime knowing a crime was committed. Now, Person B would be guilty of accessory after the fact of the robbery. If Person A and Person B ran away separately and went to different destinations, Person B would not be accessory. But if Person B assisted Person A in any way to escape the crime, Person B would then be guilty of a crime him/herself.

Subsequent Miranda Warnings May Not Cure Prior Police Failure to Mirandize Suspect in Florida

Published on: June 14, 2014 | by Lasnetski Gihon Law

From TV shows, the news and other sources, most people have heard the term Miranda warnings. Unlike just about every legal issue seen on TV, the Miranda warnings that are read on TV are usually somewhat similar to what is read to suspects in real life. Miranda warnings are something that are required both in the Florida and United States constitutions based on the premise that no one shall ever be compelled to make any statement incriminating him/herself.

Police in Florida are not always required to give a suspect Miranda warnings when they talk to a suspect. Miranda warnings are required when a suspect is being questioned after having been taken into custody. This does not necessarily mean the suspect was handcuffed and taken to the police station. If the police create a situation where the suspect does not reasonably believe he/she is free to leave as he/she is being interrogated, Miranda warnings should be given. Those warnings tell the suspect, among other things, that the suspect has a right to a lawyer and has a right to remain silent. Most of the time, exercising both of those rights is a very good idea.

If the police interrogate a suspect in custody and do not recite the Miranda warnings, any subsequent statement given by the suspect may be inadmissible in court. That is the penalty for failing to provide Miranda warnings when required. The charges do not automatically get dropped, and the defendant is not automatically released. However, a statement that was taken from a defendant can be suppressed which may be a significant blow to the state’s case.

Abandoning Stolen Property Can Be a Defense in a Robbery Case in Florida

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

In Florida, a person can be convicted of theft, which can be a felony or misdemeanor charge, depending on the value of the item stolen, if he/she takes the property of another with the intent to deprive that person of the property. The intent can be to permanently take the property or temporarily take the property. So, a defendant testifying that he/she intended to return the property is not necessarily a defense to a theft charge.

In Florida, a theft case can become a robbery case if the suspect used force either during the theft or after the theft when he/she was trying to get away. However, it would be possible for a person to commit a theft without force, abandon the property and then subsequent force would not be the basis for a robbery charge. A robbery charge is a felony and likely much more serious than a standard theft charge.

In a recent case near Jacksonville, Florida, the suspect stole some items from a department store. He was seen by store security and followed out of the store. The security officer chased the suspect, and the stolen items either fell out of the suspect’s jacket or were intentionally dropped. Thereafter, the officer caught the suspect who showed a gun to the officer and told him to back away. Even though the suspect did not use force or show the gun during the theft, he could still be charged with armed robbery for using the gun to get away with the theft. However, if he had abandoned the theft prior to showing the gun, the defendant could argue the two events were unrelated and a armed robbery charge was inappropriate.

Florida Felony Hit and Run Case Reversed Where State Could Not Prove Defendant Knew He Hit Victim

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

In Florida, it is a very serious felony crime to get into a motor vehicle crash that results in a serious injury or death and leave the scene of the crash without stopping to provide insurance and other information to the police. The idea is that a person who causes a crash must provide his/her insurance information so that the victim can be properly compensated and must speak to the responding officer who will investigate the crash. If a person flees from the scene after causing a crash, the assumption on the part of the state is that the person was doing something wrong while driving, whether drunk driving or driving with a suspended license or driving with an outstanding arrest warrant.

Leaving the scene of an accident would seem like a fairly easy charge for the state to prove. However, it can be difficult depending on the circumstances of the crash and when and how the alleged suspect is caught. In a recent case near Jacksonville, Florida, the defendant hit a person late at night who was standing in the middle of the road on a major highway. The victim was dark skinned and wearing dark clothing. The defendant hit the victim and kept driving. Other potential witnesses saw the crash but were not clear as to how it happened and which vehicle hit the victim because the area was so dark and the victim was hard to see. As for the defendant, he testified that he thought something fell off a truck and hit his vehicle. He did not believe he actually hit a person because he did not expect there to be a person in the middle of the road on a major highway and he never saw anyone. The next day, he checked the damage to his vehicle and saw hair and blood. At that point, he called the police and turned himself in.

His conviction for leaving the scene of an accident with a death was ultimately reversed. The state was able to prove that he hit the victim and left the scene, but the state could not prove that the defendant knew he hit a person. It seems obvious and it is in most cases, but the state does have to establish the defendant knew he hit an actual person to convict him of this crime. In this case, because it was dark, the crash occurred in a place where pedestrians are very rare, other witnesses were unclear about the nature of the crash and the state did not have any specific evidence to prove the defendant’s knowledge, the state did not meet its burden of proof on this case. The defendant’s explanation that he did not know he hit a person was plausible so he was not guilty of the hit and run crime.

DNA on Gun Was Not Sufficient for Possession of a Firearm By a Convicted Felon Conviction in Florida

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

In criminal cases, DNA evidence is often seen as a strong indicator of the defendant’s guilt. Not many cases have DNA evidence presented by the state, but when the state does present DNA evidence, juries usually take note. DNA evidence is certainly well established evidence at this point that can be difficult for a criminal defense lawyer to refute. However, DNA evidence does not necessarily mean what the state wants it to mean or what the state argues it means to the jury.

In a recent case south of Jacksonville, Florida, the police responded to a burglary call. When they arrived, they arrested the suspected burglar and then checked the apartment for evidence. Inside the apartment, the police found a gun in the bedroom. Because the occupant of the apartment was a convicted felon, the police arrested him for possession of a firearm by a convicted felon.

Although it is rare, the police tested the gun for fingerprints and DNA and found viable DNA on the gun. The DNA matched the defendant who lived in the apartment. The police also found the presence of other DNA on the gun but did not test any of the DNA to see if it matched with the burglar. The state argued that since the gun was found in the defendant’s apartment and had his DNA on it, the defendant was guilty of possession of a firearm by a convicted felon.

Florida Court Finds Police Stop is Valid When Driver Stops Just Past Stop Bar

Published on: May 30, 2014 | by Lasnetski Gihon Law

In Florida, many criminal arrests start out with a much less serious traffic stop. When a person commits a traffic violation like speeding or running a red light, he/she is normally just looking at a fine and possibly some points on his/her driving record. However, when the police stop a person for a traffic violation, it can turn into a much more serious criminal violation. Most DUI’s and many drug cases start with traffic stops and turn into criminal investigations followed by arrests.

There are many different traffic violations that a police officer can use to stop a driver to write a traffic citation or as an excuse to investigate criminal activity. In a recent case near Jacksonville, Florida, the driver came to a stop sign and instead of stopping behind that stop bar line that is at most stop signs, the driver stopped just past it so that part of the front tire and hood were in front of the stop bar. Seeing this, the police officer stopped the driver for running the stop sign. When the police officer approached the car to write the traffic ticket, he said he smelled marijuana inside the vehicle. The police officer ultimately arrested both the driver and passenger for marijuana and cocaine possession charges.

The criminal defense lawyer filed a motion to suppress the evidence of the drugs arguing that the driver did not truly violate a traffic law. if the original basis for the stop is not valid, than any evidence the police officer discovered as a result of the initial traffic stop should be thrown out of court.

Driving With a Suspended or Revoked License Can Be a Felony in Florida if There is a Serious Crash

Published on: May 27, 2014 | by Lasnetski Gihon Law

In Florida, driving with a suspended or revoked driver’s license is normally a misdemeanor crime. That crime usually comes with a fine and court costs, although it can result in a prolonged driver’s license suspension. If the defendant is in a position to get a valid license while his/her criminal case is pending, judges will often give the defendant an opportunity to get the good license and then the judge will usually resolve the case in a way that has no effect on the defendant’s driving record.

If a person gets enough driving with a suspended license charges, judges will start to order jail sentences. Additionally, the DMV will take action to extend suspensions. The state has the authority to charge the defendant with a felony driving with a suspended license charge upon a third conviction, but they usually do not go that far. However, at some point, a defendant who gets enough driving with a suspended license convictions will end up with a felony charge.

Another way for a driving with a suspended license violation to become a felony charge is if the defendant caused an accident that resulted in a serious injury or death. Some prosecutors may think that any person with a suspended license who drives and gets into an accident that results in a serious injury or death is guilty of the felony charge. However, that is not the case. The state would have to prove that the defendant was driving while his/her license was suspended, he/she got into an accident and the defendant’s driving caused the serous injury or death. Therefore, if a person is driving with a suspended license and gets into a serious accident but the accident is not his/her fault, the defendant would not be guilty of felony driving with a suspended license because he/she did not cause the serious injury or death. He/she would, however, be guilty of the basic driving with a suspended license charge that would be a misdemeanor as long as he/she does not have at least two prior driving with a suspended license convictions.

When Can Police in Florida Search a Person’s Hotel Room for Drugs?

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

The Constitution protects a person’s home, vehicle and other property from unreasonable searches. This normally means that the police must either have consent to search or a search warrant before they search something that belongs to another person. However, some items or locations are not as clearly protected from police searches.

For instance, what Constitutional protections are involved with hotel rooms? The law is not completely clear and whether a search is valid depends on the circumstances of the case, but some rules do seem to be fairly certain. If a person registers for a hotel room, pays the fee and is lawfully in the room, that hotel room has similar Constitutional protections to a house. In that situation, the police cannot just walk in without permission or a search warrant. The police also cannot go to the manager’s office or hotel security and have them let the police into the hotel room without the consent of the person who rented the room or a search warrant. However, if the room is rented until a certain date and time and the occupant does not pay to keep renting the room beyond that time, the police can likely have the manager let them in the room to search it. For instance, if a person rents the room for Monday night and checkout time is 10:00 am on Tuesday and the person does not pay for Tuesday, the police may be able to go into the room to search it after 10:00 am on Tuesday.

What about a guest of the person who rented the room? If Person A rents the room and allows Person B to stay in the room as well, can Person B challenge an illegal search of that room? That depends on the circumstances. If Person B can establish that he had a legitimate expectation of privacy in the room, Person B may be able to challenge a search of the hotel room. For instance, if the hotel knew Person B was staying there, the hotel did not have a policy against it, Person B had his belongings in the room and had already been in the room for a sufficient period of time, Person B may have a expectation of privacy in the room that would allow him to challenge an illegal search of the room. On the other hand, if the guest had only been in the room for a short period of time, did not have any belongings in the room and the hotel did not know the guest was in the room, it would be more difficult for that person to argue that he has standing to challenge an illegal search of the room. In that case, the police search could be highly illegal and the police could find a lot of drugs or other evidence and that person may not be able to challenge that search.