Jacksonville Criminal Lawyer Blog

Medical Marijuana Making Its Way to the Ballot in Florida in 2014

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

Medical marijuana is now legal in one form or another in twenty states and the District of Columbia. Florida, however, is not one of those states. In some of these states, medical marijuana has been legal for more than a decade. In those states, civilization has not, in fact, deteriorated into anarchy. But like what seems to increasingly include most of the civilized world, Florida is slowly but surely making its way towards consideration of marijuana as a viable medicine and not the evil plant involved in the most expensive, ineffective and counterproductive policy in the history of mankind, also known as the war on drugs.

This month, the Florida Division of Election has certified enough signatures to get a medical marijuana bill on the ballot for November of 2014. The language of the law still must be determined. If the measure can get at least 60% of the votes, a law legalizing medical marijuana law would be in effect in Florida. If not, Florida taxpayers would continue to finance the arrests, prosecution, incarceration and criminal processing of large numbers of marijuana defendants at an incredibly expensive, repetitive and wasteful rate.

A recent poll found that 65% of people in Florida favor legalizing medical marijuana, although you can not tell how accurate such a poll is especially before the proposed law has even been written.

Federal Judge Throws Out Florida’s Drug Testing of Welfare Applicants Law

Published on: January 24, 2014 | by Lasnetski Gihon Law

Not long ago, Florida passed a law that required people applying for certain welfare benefits to take a drug test regardless of whether there was any evidence they used drugs. Whether this was about politics or the governor’s wife having an interest in the company that secured the lucrative contract to do the testing, it did not seem to be in compliance with the constitutional protections against unreasonable searches and seizures. The Constitution provides that the government cannot search a person, and requiring a urine sample constitutes a search, without specific evidence that the person has committed a crime. This applies to both rich and poor people. Applying for welfare is not sufficient evidence that someone has committed a crime, even use or possession of drugs.

The law passed and apparently, due to the very low percentage of welfare applicants who failed the drug tests, the program cost more than it saved. However, as expected, an additional cost was the automatic lawsuit against the government that followed the law’s passage. Recently, a federal judge decided that the law is unconstitutional. The judge simply and predictably found that the government cannot drug test people without a valid search warrant and/or specific evidence that the person is involved in criminal activity.

Although no one paying attention would believe this law was ever about saving taxpayer money, quite the opposite, the governor has indicated an intention to appeal the decision.

Florida Defendant Gets Murder Dropped with Stand Your Ground Immunity

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

After the George Zimmerman/Trayvon Martin case, the Florida Stand Your Ground law received a lot of national attention. Basically, it allows a defendant to file a motion to have the case thrown out by a judge if the facts indicate he/she had a right to use the force that was used during the incident. Despite what the media may have suggested, such an immunity assertion was not made by George Zimmerman although he obviously argued self defense during the trial.

The following is an example of a case where the Stand Your Ground immunity motion was made and was successful. In a murder case near Jacksonville, Florida, the defendant was charged with second degree murder after an altercation outside a restaurant. Defendant’s friend got into an argument with two guys in the restaurant. When Defendant and his friend left the restaurant, Defendant’s friend was attacked and punched by one of the people they had argued with before. The other guy then came and made a threatening move to Defendant. At first Defendant raised his hands to fend them off but when he said he saw one of them reach under his shirt, Defendant pulled out his gun that he had obtained earlier after the argument and shot and killed both of them. Two knives were found near where one of the victims fell. Defendant waited at the scene and was cooperative with the police. He gave a statement and was released. One similarity with the George Zimmerman case then occurred. Weeks later, a new investigator took over and decided to arrest Defendant although no new evidence was uncovered.

The criminal defense attorney filed a Stand Your Ground immunity motion. He argued that after Defendant and his friend were attacked and one of the attackers reached into his pants (where he certainly could have had a knife or gun), Defendant was reasonably in fear of death or serious bodily harm to himself and his friend and had a right to use reasonable force to address the threat. That is what the Stand Your Ground law is about. If a person is in reasonable fear that another is going to cause him or another person serious bodily injury or death, that person can respond with force in a reasonable manner to defend himself and/or the other potential victim. The person does not need to retreat or fire a warning shot. Of course, the ultimate question is whether it was reasonable, under the circumstances, to use force and then to use the amount of force that was used by the defendant.

Florida Correctional Officer Convicted for Selling Contraband to Inmates at Private Prison

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

In Florida, bribery is a second degree felony crime. It is defined by giving or offering a public servant any unauthorized money or other benefit to get the public servant to do something, or fail to do something, within his/her official discretion as a public official. A person can be convicted of bribery by offering to bribe a public official even if the public official does not intend to follow through with the request or does not even have the ability to perform the request. Offering such a deal to the public official can be bribery even if it goes no further. Both sides of the equation can be convicted of bribery- the person making the offer and if applicable, the public servant who agrees to the unlawful request.

In a recent case case near Jacksonville, Florida, a corrections officer at a private prison was arrested for bribery for bringing contraband into the prison and selling it to inmates. The defendant did not defend the case by arguing he did not commit those acts; he argued that he could not be convicted of bribery because, as an employee of a private prison, he was not a “public servant” as required by the bribery statute.

The court agreed with the argument, but the defendant was convicted anyway. Since it was a private prison, his employer was a private company, even though the private prison had a contract with the state to operate the prison. Under the Florida law, a “public servant” is defined as an officer or employee of a state, county, municipal or special district agency or entity. The defendant did not fit into that definition. However, most likely due to the emergence of private prisons, Florida law includes a provision to cover this kind of situation. The Florida Correctional Privatization Act basically says that if the act would be a crime if committed at a state run prison, it is also a crime if committed at a private prison.

Bondsman Assists Police with Marijuana Cultivation Arrest in Florida

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

In most drug cases, particularly cases where the police arrest someone for manufacturing or growing marijuana, the case starts out with the police getting a tip that the suspect is growing marijuana in his home or on his property. The police conduct surveillance, check the trash, check electricity bills for a spike in activity due to the increased lighting and ventilation, and other investigative techniques to try and determine if the information is reliable. The police also often just walk up to the door, knock and see if the resident will answer questions or consent to a search.

In a marijuana case near Jacksonville, Florida, a person who was on bond missed court so his bondsman went to look for him. The bondsman went to the last known address of the person and another suspect answered the door. The bondsman asked if he could search the house to look for the person. The suspect agreed, and the bondsman found a marijuana grow operation inside. The suspect was fairly open about his marijuana cultivation with the bondsman. A bondsman is not a police officer, and does not work for the state. His job is normally to find people who are on bond who have missed court so they can be surrendered to the jail or otherwise made to come to court. A bondsman would not necessarily care about someone else committing a crime.

However, this bondsman decided to cal the police and tell them about the marijuana grow operation he saw. The police came to the house and searched it without valid consent. The police were apparently also in the process of obtaining a search warrant based on the evidence provided by the bondsman that was confirmed by the first police officer to respond, but they searched the house before the search warrant was signed.

Florida Students in School Have Less Protection Under Search and Seizure Provisions

Published on: December 30, 2013 | by Lasnetski Gihon Law

In Florida, people have a strong constitutional protection to be free from unreasonable searches and seizures from the police. This protection is stronger or weaker depending on what is being searched. For instance, it is the strongest when it comes to one’s residence and somewhat weaker when it involves a person’s vehicle. In any case, the police cannot just search a person or his/her belongings without a search warrant, consent to search or one of the limited exceptions to those two circumstances.

However, in Florida, a student in school has a more limited protection against searches and seizures of his/her property. In a recent gun case near Jacksonville, Florida, the principal received an anonymous tip that a student had a gun at his public school. Based on this anonymous tip, the principal removed the student from class, took his book bag and searched it. The principal found a gun in the book bag, and the student was arrested for carrying a concealed weapon and possession of a firearm on school grounds.

The criminal defense lawyer filed a motion to suppress the evidence of the gun claiming the principal did not have probable cause to search the defendant’s book bag. The motion was denied. Under normal circumstances, an anonymous tip, without more evidence, would practically never be a legitimate reason to search someone or his/her property. If this was at the student’s home, a traffic stop, an encounter on the street or any number of other situations, this search would have been illegal. However, things are different in public school. With a Fourth Amendment issue and the search and seizure laws, the primary issue is whether the search was reasonable under the circumstances. There are several factors that determine what is reasonable. Some of those factors include: the suspect’s expectation of privacy in the property searched, the reliability of the information about the alleged criminal activity and the state’s interest in protecting the public.

Florida Possession of a Firearm by a Convicted Felon Statute May Be Unconstitutional as Applied to Antique Firearms

Published on: December 27, 2013 | by Lasnetski Gihon Law

In Florida, it is a felony crime for a person to have a firearm after he/she has been convicted of a felony crime. This is true even if the felony conviction occurred in another state. The term “possession” in the possession of a firearm by a convicted felon statute does not just mean a firearm a person is actually carrying; it can also apply to a firearm that is in one’s home, vehicle, office or other place where the state can prove the person knew it was there and had the ability to exercise some sort of control over it.

There is an exception to the Florida possession of a firearm by a convicted felon law that comes up every now and then. The criminal statute does not apply to antique firearms. In other words, if a firearm qualifies as an antique under the Florida statute, a convicted felon can possess it. An antique firearm is defined as a firearm manufactured in 1918 or earlier, or a replica thereof whenever manufactured, and any firearm using fixed ammunition made in 1918 or earlier, for which no ammunition is now made in the United States or readily commercially available. The exception here is fairly narrow, but there are collectors and other people who may have such old firearms. There are also people who may have newer replicas of such firearms who believe they are also an exception under the statute.

In a recent case south of Jacksonville, Florida, the defendant was arrested for being in possession of an old muzzle loader rifle. The rifle did not meet the simpler definition of an antique firearm as it was not manufactured in or before 1918, but the criminal defense lawyer argued it was a replica of such a firearm so the defendant was permitted to possess it even though he was a convicted felon. The defendant was convicted of possession of a firearm by a convicted felon at trial, but the criminal defense attorney appealed. He argued that the term “replica”, as it was used in the possession of a firearm by a convicted felon statute, was unclear. If a criminal statute is vague and unclear so that an ordinary person reading the statute would not be clearly informed what is illegal and what is not, the statute can be considered unconstitutional. In that case, the statute could not be used to prosecute that defendant or anyone else unless and until it was changed through the legislature to make it sufficiently clear.

Police Withholding Facts From Judge May Not Negate Search Warrant in Florida

Published on: December 6, 2013 | by Lasnetski Gihon Law

In Florida, if the police want to come on to a person’s property to search it for drugs or other evidence of criminal activity, they normally need a valid search warrant signed by a judge. Alternatively, they can usually go up the residence, knock on the door and ask for consent from the homeowner or someone authorized to give consent. However, a person with drugs in his/her house or who otherwise would prefer not to have the government rummaging through their personal belongings might refuse to give such consent.

Whether the police have sufficient evidence to obtain a valid search warrant depends on the circumstances of each case. In a recent marijuana case near Jacksonville, Florida, the police, as is often the case when these kinds of cases start, received an anonymous tip that the defendant was growing marijuana on his property. The police went to his house, but they could not see anything because the defendant had a tall fence surrounding his property that was lined with fabric preventing anyone from seeing through the fence. The police then flew a helicopter over the property, but they did not see any marijuana. They did notice two sheds in the back yard. Next, the police looked through the trash bags that the defendant set out on the street. The trash bags revealed burnt marijuana blunts and large marijuana stems. The police took this information along with the fact that the defendant had prior drug convictions to a judge to get a search warrant for the property. They obtained a search warrant, searched the property and found that the defendant was growing marijuana in the sheds in his back yard. He was arrested on various cultivation and trafficking in marijuana charges.

The criminal defense lawyer filed a motion to suppress the evidence of the marijuana. When applying for the search warrant, the police failed to inform the judge that they flew over the property and did not see any indication of marijuana cultivation or possession. The criminal defense attorney argued that the search warrant was invalid because the police misled the issuing judge when they failed to disclose this information. If the police omit certain facts to mislead a judge in issuing a search warrant and the omitted facts negate the probable cause the police seemingly have without the omitted facts, then the evidence the police find as a result of the search warrant is inadmissible.

Police Seize Money From Vehicle Driver Based on Odor of Marijuana

Published on: December 3, 2013 | by Lasnetski Gihon Law

The Florida forfeiture laws allow the government, in the form of police, to seize property from people in many circumstances. When the police seize property, whether it is money, a vehicle, electronics, or anything else the police would like to have, they have to file paperwork with the court to institute forfeiture proceedings. In those forfeiture proceedings, the state has to prove the property was used to facilitate some criminal transaction, was actual proceeds from a criminal transaction like drug sales or were otherwise connected to a criminal transaction.

In many cases, the property seized and forfeited is cash that is found in relation to an actual drug deal. In those cases, it can be difficult to recover the money seized by the police. However, the state has seemingly become a lot more brazen in their attempts to seize and forfeit property from Florida citizens. We have seen more and more cases where the police seize and attempt to forfeit large sums of money even though no one was arrested. It seems odd that the police can seize a person’s money or other property when the police do not think enough about what may have happened to even make a criminal arrest. However, there are many cases where the police take money or other property but do not bother to make an arrest.

In a recent case near Jacksonville, Florida, the police were patrolling along I-95 looking for a certain profile they believed fit the description of people transporting illegal drugs. In Florida, that usually means minorities, rental cars and/or out of state license plates. They stopped a driver and issued him a warning for driving too closely to another vehicle. The police asked the driver if he had any drugs in the vehicle, and he indicated he did not. The police then walked a drug dog around the vehicle, and the dog allegedly alerted to the odor of marijuana coming from the vehicle. The police officer then searched the vehicle and found no drugs or anything else illegal in the vehicle. They did find several thousand dollars in cash in the vehicle, and seized that cash. Because there was obviously no crime committed, the police officer did not arrest the driver.

Police in Florida Cannot Get Valid Consent to Search After Illegally Entering Residence

Published on: November 26, 2013 | by Lasnetski Gihon Law

In Florida, there are few exceptions to the requirement that police officers must obtain a search warrant signed by a judge before they enter someone’s residence to search for evidence. One such exception is that the police can normally approach a residence, knock on the door and ask the occupant if they can search the residence. Of course, the occupant can always refuse to allow the police to come in and search the residence, and in that case, the police would likely need to obtain a search warrant to initiate the search.

In a recent drug trafficking case in Jacksonville, Florida, the police obtained information that a cell phone with incriminating evidence on it was located in an apartment. They did not want to reveal how they tracked the cell phone to the apartment so they decided not to try and get a search warrant. Instead, they went to the apartment, knocked on the door and asked the resident if they could search the apartment. The resident refused, as he had a right to do. However, as is often the case, the police did not take no for an answer and entered the apartment anyway. Once inside the apartment, they started to search and found the cell phone. At some point, the police apparently obtained consent to search after they had entered the apartment. The defendant was ultimately arrested for drug trafficking based on the evidence obtained in the apartment.

The criminal defense lawyer filed a motion to suppress the evidence found in the apartment based on the fact that the consent was not legally obtained. Normally, when the police ask for consent to search and get it, the police can conduct a reasonable search under the circumstances. However, the consent has to be given free from any improper police conduct. In this case, the police violated the law by entering the apartment without a search warrant and after consent to search was denied. As a result, the consent that was obtained after the illegal entry was tainted and invalid. The evidence recovered in the apartment as a result of the illegal search was thrown out.