Jacksonville Criminal Lawyer Blog

Florida Drug Case Reversed Where Police Seize Box with Unidentified Pills Inside

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

In Florida, it is fairly common for the police to make an arrest when they find a person with pills but without a prescription. This is one of the ugly side effects of the disastrous war on drugs- drug arrests are easy, they are good for stats and police often take an arrest first, ask questions later approach to these cases. Additionally, the Constitution often takes a backseat when an opportunity for an easy drug arrest presents itself. This is often the case with pill cases where police make arrests even when the suspect claims to have a prescription or even where the police do not even know what the pill is, but suspect the worst.

In a recent case near Jacksonville, Florida, the police stopped the defendant for a traffic violation. During the traffic stop, the officer asked the defendant if he could search her car. She agreed. The police officer found a pill container with some pills inside he could not identify. The police officer did not get permission to take the pill container or search it. He detained the defendant and asked her about the pills. The police officer ultimately took the pill container, went to his vehicle, looked on his computer and found that the pills were Ritalin and Tramadol. The defendant was arrested for possession of drugs.

The criminal defense lawyer filed a motion to suppress the evidence of the drugs arguing the police officer did not have consent or probable cause to search the pill container. It is not illegal to have pills and since the police officer did not know what the pills were when he seized them, there was nothing about the pills that indicated they were illegal. In other words, because pills are usually not obviously illegal based on their appearance, the police officer had no probable cause at the time to seize the pills for further investigation. Somehow, the trial judge did not see the obvious Constitutional violation and allowed the drug evidence to be submitted to a jury. Fortunately, the Appellate Court saw the obvious lack of probable cause and found the search and seizure unconstitutional.

Florida Prescription Drug Case Reversed Where State Uses Database to Show Defendant Had No Prescription

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

In the Jacksonville, Florida area, we see a lot of drug cases involving defendants who are arrested for having prescription drugs without the prescription. The drug laws in Florida are very harsh, and prescription drug cases can come with serious penalties, sometimes with lengthy minimum mandatory prison sentences.

When a person is investigated, arrested or charged with a possession of a drug, it is a defense to the charge if the person has a valid prescription for the drug. In many cases, the police find a person in possession of some drug, the person will tell the police officer he/she has a prescription for it but not in his/her possession and the police officer will make the arrest anyway. At that point, it is up to the criminal defense lawyer and the defendant to obtain the prescription information, provide it to the prosecutor and get the drug charges dropped.

In a recent case involving possession of Methadone and Xanax in Jacksonville, Florida, the defendant was stopped in his vehicle and the police officer found Methadone and Xanax in a small pill bottle. When the drug is found in a bottle other than the one provided by the pharmacy for that particular drug, the police are almost always going to make the arrest if the prescription is not present at the scene. That is what happened in this case. The defendant said there were prescriptions for the Methadone and Xanax, but he did not have them at the time. At the trial, a prescription was produced for the Xanax but not the Methadone. He said the pharmacy that issued the Methadone had closed. The defendant relied on testimony only to indicate there was a valid prescription for the Methadone.

Carrying a Concealed Firearm in Florida Means Hidden From Plain Sight

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

While the Second Amendment clearly gives people the right to own and carry a firearm, there are restrictions of that right. In Florida, those restrictions can come with severe penalties if a person is in violation of the law. For instance, if a person has been convicted of a felony in the past, whether in Florida, in another state or in the federal system, that person may not carry or possess a firearm, If he/she is caught in possession of a firearm, he/she will likely face a felony charge that often results in prison time.

Another restriction for people who have no felony criminal record is that they may not carry a firearm that is concealed without a license. “Concealed” is defined as being hidden from the ordinary sight of another person. Normally, whether a firearm is concealed depends on the circumstances of the case and may ultimately be decided by a jury. The jury would obviously look at where the gun was found and how visible it was, but any evidence indicating that the defendant was acting suspiciously and trying to hide the gun would be considered as well. A defendant is more likely to be exonerated when the gun was fairly visible and not covered by anything and the defendant was not acting strange versus a situation where the gun was harder to see and it appeared the defendant was taking steps to try to hide it from the police officer.

Ultimately, these cases are often based on the testimony of the police officer and the defendant and whichever a jury believes. A carrying a concealed firearm charge is a third degree felony in Florida.

Wire Fraud Conviction Reversed Where “Victim” Was Not Financially Defrauded

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

The federal wire fraud statute is very broad and used often by United States Attorneys offices in presenting indictments to grand juries. Essentially, a person commits wire fraud when he/she uses a wire communication (i.e. a telephone, among other methods) to defraud someone out of money or property using false statements or pretenses. The crime carries a maximum penalty of up to twenty years in federal prison.

Is it still wire fraud if a person uses false statements to obtain property but does not actually defraud the other party out of money? That is not a question often asked in a wire fraud or mail fraud case because the object of the scheme is normally to defraud someone out of money or out of property without paying for it. However, in a recent case out of Ohio, the government charged two people who were operating an illegal pain clinic with wire fraud under such questionable circumstances. We had a lot of these pain clinic cases here in Florida with the federal and state law enforcement agencies shutting down a lot of so called pain clinics they claimed were distributing pain pills to people en masse without conducting proper medical evaluations and diagnoses. In the Ohio case, those issues were present, but the government also charged the defendants with wire fraud for telling their supplier, a pharmaceutical company, that they were prescribing the pain pills for low income patients. That misrepresentation allowed them to obtain the pills from the pharmaceutical company, but the defendants paid full price for the pills.

The government alleged this was wire fraud because the defendants made false statements to get the pharmaceutical company to sell them the pills. The criminal defense lawyer defended the case by arguing that the pharmaceutical company was not defrauded because it received full compensation for the pills. The fact that the pharmaceutical company received false information should not be the basis for a wire fraud conviction.

Florida Man Convicted of Fraud For Using False Information to Get a Job

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

When a person applies for most types of jobs in this country, he/she is normally required to provide information indicating he/she is either a United States citizen or otherwise legally authorized to work here. Of course, we all know that employers do not always check that information for various reasons. One of the items a prospective employee would normally have to present to an employer is a valid social security number. If the employer requests the applicant’s social security number and the applicant provides a false social security number, the applicant can be arrested on a felony fraud charge in Florida.

In Florida, it is illegal to knowingly present any false or misleading oral or written information as evidence of identity for the purpose of obtaining employment. The same law makes it illegal to present false identification information to obtain workers’ compensation benefits.

In a recent case near Jacksonville, Florida, the Florida Department of Revenue learned that the defendant gave a false social security number to obtain a job at a waste management company, and he was arrested for fraud. The criminal defense lawyer argued that the defendant was not guilty because the company knew the defendant’s social security number was false. In that case, since no one was mistaken as to the defendant’s identity and legal status, there was no fraud. Fraud normally requires an intent to deceive someone to get some sort of benefit.

Florida Defendant Denies Ownership of Cell Phones, Cannot Challenge Search of Cell Phones

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

When the police search property and find incriminating evidence, the criminal defense lawyer would file a motion to suppress that evidence if there is an argument that the search was not legal. If the criminal defense attorney is successful with the motion to suppress, the evidence that was obtained by the police cannot be used against the defendant in court. There are, however, some rules which may not afford a defendant the right to even challenge an illegal search. For instance, a defendant has to establish that he/she has standing to challenge a search. Standing basically means that the defendant has a privacy interest in the property searched. For example, if the police come into my house and seize evidence, I have standing because I own the house where the property was seized. On the other hand, if the police go into a neighbor’s house and find evidence that incriminates me, I may not have standing to challenge that search since I do not own or live in my neighbor’s house.

In a recent lewd or lascivious exhibition and child abuse case near Jacksonville, Florida, the police responded to a domestic dispute. Once inside, a police officer saw an electronic tablet and started looking at some pictures. The police officer saw child pornography pictures on the tablet. The suspect denied that the tablet was his. He also denied that he owned some cell phones that were in the house. The police officers seized the cell phones, later obtained a search warrant for them and found more child pornography pictures on the cell phones.

The criminal defense lawyer filed a motion to suppress the evidence of the child pornography pictures found on the tablet and cell phones alleging that the police did not have consent to seize or search those items and did not have a warrant to seize them. This may have been a strong argument, but the court found that the defendant did not have standing to contest those searches and seizures. When a person voluntarily abandons or disclaims ownership of property, he/she cannot challenge an illegal search of that property, i.e. he/she has no standing. That can present a tricky situation. A person does not want to claim ownership of something that contains incriminating evidence. On the other hand, if the person disclaims ownership of the item, he/she may not be able to challenge an illegal search in court. Often, the best course of action is to exercise one’s right to remain silent in such situations.

Federal Government Looking to Regulate E-cigarettes

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

E-cigarettes are often marketed as a safer alternative to regular tobacco cigarettes. There are many new companies, some of them public, that are manufacturing e-cigarettes and making a lot of money doing so. E-cigarettes are different from traditional cigarettes in that they are battery operated and heat a liquid that contains nicotine and turns it into vapor that can be inhaled and exhaled. While an e-cigarette often looks like a traditional cigarette and a person smoking one looks like he/she is exhaling smoke, it is actually vapor. E-cigarette proponents say since the e-cigarette user is not burning tobacco which is a carcinogen when inhaled, e-cigarettes are much safer. Others say that a person smoking an e-cigarette is still inhaling harmful substances and it is too soon to tell what the long term effects might be.

As expected, the federal government has decided to get involved. The Food and Drug Administration has proposed some rules to regulate e-cigarettes. They have proposed banning sales to minors, requiring warning labels on the packages and requiring approval for new products. These are similar to rules governing the sale of traditional cigarettes. Of course, as we learn more about e-cigarettes, more regulations may follow such as banning flavored e-cigarettes that might be more tempting to kids or banning Internet sales that make it easier for kids to buy them.

As these regulations and laws go into effect, it is important for retail store owners to be aware of them. As the police have done and continue to do with what they call “synthetic marijuana”, we would expect law enforcement to go to certain places that sell e-cigarettes and start making arrests if and when e-cigarettes are sold in violation of the laws and regulations.

Defendant in Florida Can Get Two Convictions for Aggravated Battery Against a Pregnant Woman

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

In Florida, the crime of battery is very broad and can include a lot of different actions. Basically, a battery is defined as any unauthorized touching. So, a slight push or any marginal contact can be considered a battery if the victim did not authorize the contact. A battery charge, in and of itself, may not be terribly serious if the contact is minimal, but it can become much more serious, even with minimal contact, if other factors are present. For instance, if the victim is a relative, the mother of one’s child or living in the same residence, it can be a domestic battery. Domestic battery charges usually come with greater penalties, and they remain on a person’s criminal record forever if the defendant enters a guilty or no contest plea. If the victim is pregnant, that slight contact becomes a felony charge. In that circumstance, even if the victim is only a few weeks pregnant and even though the defendant barely touched the victim who was uninjured, the defendant could be facing a serious felony charge of aggravated battery on a pregnant woman.

In Florida, a defendant can get convicted of two battery charges for the same incident. In a recent case near Jacksonville, Florida, the defendant was charged with beating the victim with a pole. The victim suffered a variety of injuries including broken bones. She was also pregnant at the time of the incident. At the trial, the defendant was convicted of aggravated battery and aggravated battery of a pregnant woman. Each of those charges comes with a potential 15 year maximum prison sentence.

The criminal defense lawyer argued that it violated double jeopardy for the defendant to be sentenced for two aggravated battery charges when he committed a single act of battery. The key questions was whether the injuries resulted from a single act or a series of acts. Because the victim had injuries all over her body, there was evidence to suggest that the defendant committed separate and distinct acts of violence against her which would allow separate aggravated battery charges.

Aggravated Battery or Assault With a Vehicle Could Just Be Reckless Driving in Florida

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

In Florida, there is something called a lesser included charge or offense which can be a great benefit to a defendant who may be guilty of a crime, but not a crime as serious as the one charged by the state. Most felony charges have lesser included charges that either the criminal defense attorney and the state can agree with a plea deal is more appropriate or a jury can determine is more appropriate after a trial. An obvious example occurs where a defendant is charged with aggravated assault. An aggravated assault can occur when a person commits an act that places another person in reasonable fear of injury and the defendant uses a deadly weapon in the process. If the state charges the defendant with aggravated assault but the jury finds that the defendant did commit the act but he either did not have a weapon or had some object that was not really a deadly weapon, the jury can return a verdict on a lesser charge of misdemeanor assault. The lesser included offenses, as one would guess, are usually much less serious than the original charges. They are often the difference between a felony and a misdemeanor which often means the difference between prison and probation.

In a recent case near Jacksonville, FL, the defendant and victim got into an argument and ultimately, the defendant got into his car and struck the victim while driving. The defendant was charged with aggravated battery with a deadly weapon. The criminal defense attorney did not argue that a vehicle was not a deadly weapon; a vehicle can and does cause deaths every day. The criminal defense lawyer did argue that the defendant may have driven recklessly, but he did not intend to strike the victim with the vehicle. As a result, the criminal defense attorney requested the court to allow the jury to consider the lesser included offense of reckless driving.

Reckless driving is obviously much different and much less serious than aggravated battery with a deadly weapon. However, since the elements of reckless driving are included within the definition of aggravated battery with a deadly weapon, i.e. driving recklessly without regard for the safety of others, the reckless driving lesser charge was appropriate for consideration. Additionally, there was evidence at the trial that supported a reckless driving charge, if the jury found it credible. As a result, the court held that the jury should have been allowed to consider a reckless driving charge along with the aggravated battery with a deadly weapon charge.

Can an Unauthorized Driver of a Rental Car Challenge an Illegal Serch in Florida

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

In Florida, the police are generally not allowed to search a suspect’s vehicle unless the driver or owner gives consent to search, the police have probable cause to believe there is evidence of criminal activity inside or there is an arrest of an occupant of the vehicle and there is a danger that evidence may be compromised. The police cannot stop a driver and then search the vehicle based on any assumptions or anonymous tips that there may be illegal drugs or other evidence in the vehicle.

When the police conduct an illegal search, the defendant’s remedy is to have the criminal defense lawyer file a motion to suppress to have any evidence obtained as a result of the illegal search thrown out of court. However, the defendant must have what is called standing in order to have the criminal defense attorney properly file the motion. Standing is another word for the legal right to challenge the alleged illegal search. If the driver who was arrested also owned the vehicle, or had authorization from the owner to drive the vehicle, that defendant would likely have standing to challenge an illegal search. Likewise, if a person rented the vehicle, the renter would have standing to challenge an illegal search. But what about a person driving a rental car that was not listed as an authorized driver?

In a recent drug case near Jacksonville, Florida, a police officer stopped the defendant for traffic violations. The officer asked for consent to search the vehicle, but the driver refused. The officer noted the driver was driving a rental car and asked to see the rental car agreement. The police officer saw that the agreement mentioned only one authorized driver, and the person driving was not him. The police officer ultimately searched the vehicle and found marijuana and marijuana paraphernalia inside. The driver was arrested for possession of marijuana with intent to sell.