Jacksonville Criminal Lawyer Blog

When Police Can Search a Person With No Probable Cause and No Crime in Florida

Published on: August 2, 2013 | by Lasnetski Gihon Law

Normally in Florida, the police can only search a person if he/she has committed a crime, the police have consent to search or the police have specific, reliable evidence that the person is in possession of evidence of a crime such as drugs or a gun. However, there are circumstances under the law when the police can search a person without any of those things.

In a recent possession of cocaine case near Jacksonville, Florida, the police came across a person who was exhibiting serious signs of mental instability, although he was not committing any crime. The law does allow the state to briefly detain a person, under what is commonly known as the Baker Act, for a brief period of time if the police believe the person will likely be a threat to himself or others in the near future. The Baker Act in Florida allows the police to secure the person and take him/her to a mental health facility. That is what occurred here. However, before the police transported him to the facility, they searched him for weapons. If was the police department’s policy to search anyone for weapons before being transported to a facility under the Baker Act. When the police searched the defendant in this case, they found cocaine and ultimately charged him with possession of cocaine.

The criminal defense lawyer argued that the evidence of the cocaine should be suppressed because the police did not have probable cause or consent to search the defendant. However, the court disagreed and found that the policy of searching a person during the Baker Act process was reasonable. Since the police found the cocaine during a reasonable search, they could use the cocaine against him.

In Florida, Using an Anti-Shoplifting Device Can Turn a Petit theft Charge Into a Felony

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

In Florida, the crime of petit theft involves taking the property of another without authorization and without threats or force. If the value of the property is less than $300, it is a misdemeanor crime. A misdemeanor petit theft conviction is not extremely serious, but it can result in jail time and can certainly affect a person’s criminal record permanently depending on the outcome. However, in pretty much every scenario, a misdemeanor charge is much better and less serious than a felony charge.

Many petit theft cases are shoplifting cases (which is not a legal term). Many shoplifting cases involves less than $300 and are misdemeanor cases. However, a shoplifting/petit theft case that involves stealing $100 worth of merchandise can become a felony if an anti-shoplifting device is used.

In a recent petit theft case near Jacksonville, Florida, the defendant was seen in the store with what appeared to be a thick, heavy and worn shopping bag from a different store. The store security officer watched as the defendant put various clothing items (worth approximately $150) in the bag, walk past the cashiers and walk past the sensors at the exits without paying. The sensors did not activate. The security officer stopped the defendant and found various store merchandise items in the bag. He also took possession of the bag. Apparently, the bag was actually a few shopping bags taped together. One of the inside bags had been lined with aluminum and duct tape. The purpose of this lining was to prevent the alarm sensors in the store from going off. Apparently, that part of the plan worked.

Florida Court Affirms Questionable Basis for Search of Suspected Marijuana Grow House

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

In a recent trafficking in cannabis/marijuana case in South Florida, the police received an anonymous tip that a house was being used to grow marijuana plants. The police went to the suspected marijuana grow house to investigate further. It is clear that the police cannot search a house based on an anonymous tip of criminal activity. The police need to make their own specific observations that corroborate the tip. The police came with a drug dog. The two police officers walked the drug dog up to the front door. The drug dog alerted to the odor of marijuana coming from the house.

It is also clear, based on a recent Florida court case, that the police cannot walk a drug dog onto a person’s property to smell for drugs without a search warrant or consent. However, one of the police officers said he smelled marijuana coming from the house. The other police officer, likely a newer police officer, admitted that he did not smell marijuana coming from the house. The police officers also reported that all of the blinds were closed, there were three cars in the driveway and the air conditioning was running continuously. Based on that, they searched the house, found many marijuana plants and arrested the occupant for trafficking in cannabis/marijuana.

The evidence of the drug dog alert was inadmissible because walking the drug dog onto the property without a warrant or consent was not legal. The court still held that the search was valid based on the conflicting evidence of the odor of marijuana, the cars in the driveway, the blinds and the air conditioner.

Domestic Battery Arrests in Florida Can Be Based on Very Little But Have Lasting Effects

Published on: July 24, 2013 | by Lasnetski Gihon Law

Domestic battery charges, along with DUI’s, are generally the most serious misdemeanor crimes in Florida. That means misdemeanor prosecutors tend to focus the most on domestic violence cases and domestic battery defendants. While DUI arrests have their share of serious problems, there may be no more arbitrary arrest than the domestic battery arrest. This is a problem when the most arbitrary arrest is also the most seriously treated crime in misdemeanor court. Not to diminish the severity of domestic violence, which is a serious problem in this country, but this is how many domestic violence “investigations” proceed.

First, something happens. It may be just an argument with no physical contact, it may be a mutual fight where both parties are equally involved, it may that one party starts it and the other party defends him/herself, it may be that one party starts it and the other party goes overboard and overreacts, or it may be that one side commits a clear domestic battery without any mitigation. In any case, someone calls the police. Usually it is one of the parties, regardless of which one is at fault. Sometimes it is a witness, but these cases normally happen inside the home with no witnesses.

When the police officer shows up, that is when anything can happen. Usually, an arrest happens, but who gets arrested is anyone’s guess in many cases. The police officer may side with whomever called the police. The police officer may side with whomever is more cooperative and polite and make an arrest of the person who is angrier or rude to the police. The police officer may just make a quick assessment based on how each party looks and make an arrest based on that. In almost every case, whatever happened is over by the time the police officer arrives so the police officer will not be able to make any observations as to how the incident started, who started it and whether any self defense actions were taken. arresting no one is always an option, but it does not seem like an option the police like to take.

Florida Stand Your Ground Law Applies to Non-Deadly Force as Well

Published on: July 21, 2013 | by Lasnetski Gihon Law

Due to the recent, well-publicized George Zimmerman verdict, the Florida Stand Your Ground law has received a lot of attention both in Florida and across the country. Much of that attention and focus has been partially or completely wrong. One thing is for sure- a lot of people do not understand the Florida Stand Your Ground law. We have posted several articles about it since the law came into effect a few years ago. They can be searched on this criminal defense attorney blog.

Due to the circumstances of the George Zimmerman/Trayvon Martin case, the Florida Stand Your Ground law has only been discussed in the context of a murder or manslaughter case since deadly force was used in that case. However, the Florida Stand Your Ground law can also be asserted by a defendant in a case where non-deadly force was used.

In a recent case involving the crime of battery, which is a misdemeanor in Florida, there was evidence that the alleged victim started the fight by hitting the defendant first. After the alleged victim punched the defendant, the defendant beat up the alleged victim. Based on these facts, the defendant filed a Stand Your Ground motion asking the judge to dismiss the case. The judge denied the motion because the judge said the Stand Your Ground law in Florida only applies to deadly force cases. Even some judges do not understand the Stand Your Ground law.

United States Sentencing Commission May Make Changes to Sentencing Guidelines in Certain Drug Cases

Published on: July 18, 2013 | by Lasnetski Gihon Law

We have said several times how dumb and counterproductive it is to have legislators in Tallahassee, for Florida state cases, and Washington D.C., for federal cases, to make laws requiring a minimum amount of prison time for cases about which they know nothing. Yet, there are mandatory minimum penalties for all sorts of crimes in Florida and in federal court. This prevents the judges, who know or can learn the details of the case and the parties involved, from ordering a fair sentence and places that power in the hands of politicians in another city who have no involvement in the case at all. Mandatory minimum penalties also give the prosecutor tremendous leverage and power to force guilty pleas from defendants who do not want to risk a significant, guaranteed minimum penalty if the trial does not work out in their favor. And this is a tool that is often used by prosecutors across the country to scare defendants into a plea deal for a lesser charge and lesser penalties just to avoid a huge, mandatory penalty for the greater charge.

A trend in the federal system is fewer violent crimes being committed, yet the prison populations are increasing. One reason for this disjointed result is the mandatory minimum penalties to which defendants are often exposed. Another reason is the high sentencing guidelines that are associated with drug crimes in federal court. As a result, the United States Sentencing Commission, an agency that sets sentencing policies for federal courts, may consider lowering sentencing guidelines for first time drug offenders and non-violent offenders. Various states that have also seen their crimes rates reduced but their prison costs and populations rise have implemented similar changes with success.

When crime is down but taxpayers are paying more to imprison people at greater rates, something is obviously wrong. Even the government can see it. One great place to start would be to stop, or at least slow down, the ridiculous amounts of money and resources that go into prosecuting and imprisoning non-violent drug offenders.

Police Must Observe Suspect Driving or in Control of Vehicle for DUI Arrest in Florida

Published on: July 12, 2013 | by Lasnetski Gihon Law

In order for the police in Florida to make a valid arrest for DUI (driving under the influence of alcohol or drugs), a police officer must actually observe the DUI suspect either driving the vehicle or in actual physical control of the vehicle. Actual physical control of the vehicle is often characterized by observing the person in the driver’s seat with the keys readily available or in the ignition.

This seems obvious as most DUI cases in Florida result from the police officer claiming to observe a person driving his/her vehicle in violation of some traffic law, stopping the person and then ultimately conducting some sort of subjective DUI investigation. However, there are cases where the police do not find and observe the suspect until he/she has actually stopped driving and exited the vehicle.

For instance, it is not uncommon for another citizen to observe a person driving erratically, call 911 and then give the 911 operator a description of the suspect vehicle. If the police officer locates the suspect vehicle and verifies with his/her own observation that the driver appears to be impaired while driving, the police officer can stop the driver and initiate a DUI investigation. However, if the police officer finds the suspect driver out of the suspect vehicle, never having seen him/her driving or in control of the vehicle, the police officer could not legally make a DUI arrest even if it is clear the driver is impaired from alcohol or drugs. An element of a DUI offense that the state has to prove is that the suspect was driving or in physical control of the vehicle. The police have to observe this element to make a DUI arrest. If the police do not observe it, even if a non-police witness does, it is not sufficient for a DUI arrest.

Domestic Violence Victim Gave Police Legal Basis to Search Car for Gun in Florida Case

Published on: July 9, 2013 | by Lasnetski Gihon Law

In most cases in Florida, the police cannot search a person’s property without a search warrant or consent to search. Probable cause alone is often insufficient for a search. However, there are situations where a search warrant or consent to search are not needed.

In a recent case near Jacksonville, Florida, the police responded to a domestic violence call. The defendant’s girlfriend called the police and said the defendant threatened her with a gun. The police arrived and took a statement from the girlfriend in which she said the defendant threatened her with a gun and then placed the gun in his vehicle. Based on that statement, the defendant was arrested for aggravated assault. The police then took the defendant’s car keys, searched the trunk of his vehicle and found a gun inside. The defendant was then arrested for the additional charge of possession of a firearm by a convicted felon because he had previously been convicted of a felony.

The defendant’s criminal defense lawyer filed a motion to suppress the evidence of the firearm arguing that the police did not have the right to search his car without consent or a search warrant. The court allowed the search because they found the girlfriend’s statement about the gun being in the vehicle gave the police sufficient probable cause to search the vehicle. Normally, the police would then have to take that probable cause and get a search warrant. However, the rules are different for motor vehicles because they can be easily moved while the police take the time to get a search warrant. Because of the vehicle’s mobility, the automobile exception allows the police to search a vehicle at times with probable cause but without a search warrant.

Florida Minimum Mandatory Sentence Laws are Unfair and Unnecessary

Published on: July 4, 2013 | by Lasnetski Gihon Law

As we have discussed several times on this site in the past, minimum mandatory sentences are among the most counterproductive and just plain stupid ideas our government has come up with, and that is saying a lot given the state of our government these days. Among other problems, they are basically laws created by people who have no idea about the details of the particular cases, and they take the discretion away from the people who know the facts of the case the most and the circumstances of the parties the most. They also give tremendous power to the police and the prosecutor that can be abused to leverage pleas and harsh sentences in cases and against people who do not deserve them.

For instance, if a person is charged with committing certain crimes in Florida and fires a gun in the process, without hitting or injuring anyone, that person can face a minimum mandatory sentence of twenty years in prison. There are numerous cases, perhaps most cases, involving conflicts between people where there is a real gray area as to whether the suspect is guilty of a crime, fired a gun in self defense or did nothing wrong at all. Even where a person is guuilty of such a crime, there are often mitigating factors in the case that make it very clear that twenty years is way too harsh of a sentence. However, in these cases, the state can charge the twenty year mandatory minimum crime and because that gives the state so much leverage, it forces the defendant to agree to a deal and enter a plea, often receiving a lighter sentence. The state can always waive the minimum mandatory sentence. So, in many cases where the defendant has a valid self defense claim or other defense, the defendant may end up taking a year or two in prison or probation and become a convicted felon even though he/she may not be guilty. But because you never know what a jury would do, and you do know there is a twenty year mandatory minimum penalty if the jury finds you guilty, it is way too risky to fight it in court. In that sense, which is fairly common, the mandatory minimum law severely compromises, or even eliminates, a person’s constitutional right to trial.

Another case we see often where this is a serious problem is in prescription pill cases. The laws in Florida are very harsh for possession of pills such as Hydrocodone without a prescription. It does not take many pills to qualify for a trafficking charge. The low level trafficking charges come with a three year mandatory minimum prison sentence. And the mandatory minimum prison sentences go up from there. There are many people out there who have pain pills without a prescription who are not criminals and do not deserve a felony conviction and years in prison. In many cases, the only difference between a drug trafficker (under Florida law) and a law-abiding person with a legitimate medical prescription is being born to a rich family or having a job that offers decent health insurance. In other words, a lot of people have a need for prescription drugs due to auto accidents, workplace injuries and other problems. Not everyone has health insurance to pay for those drugs. However, because of the Florida drug laws and mandatory minimum prison laws, the less fortunate go to prison while the more fortunate are popping pills with impunity.

When a Suspect’s Silence Can Be Used Against Him/Her in Criminal Court

Published on: July 1, 2013 | by Lasnetski Gihon Law

Under the Florida and United States constitutions, people who have been arrested or are otherwise considered to be in police custody have a right to remain silent. This means that the police cannot force them to make any statements that might incriminate them in a criminal case. As part of that right, if a person chooses to invoke his/her right to remain silent and refuse to answer any questions from the police, the state cannot use that person’s silence against him/her in court. In other words, the prosecutor cannot argue that the police arrested the defendant, asked him/’her about the crime, the defendant did not deny it so he/she must be guilty.

However, the United States Supreme Court recently decided a case where the state was allowed to use the defendant’s silence against him in a criminal trial. In this case, the defendant was not technically under arrest, and he started answering questions about a murder. However, during the questioning, the police asked certain questions about what the suspect thought the results would be from ballistics tests the police might run on shell casings. In response to those questions, the suspect remained silent. The suspect was ultimately arrested and put on trial for murder. At the trial, the state used the defendant’s silence in response to the ballistics questions against him arguing that he failed to answer those questions because the defendant knew his answers would incriminate him.

For a suspect being questioned about a crime, the safest course of action is to remain silent and clearly ask for a lawyer. If a suspect starts answering questions and then is silent in response to other questions, the state might be able to use that silence against the defendant at trial. Additionally, if the suspect is not clear and assertive about his/her desire to remain silent and speak with a lawyer rather than answer questions, it may not be sufficient to invoke his/her constitutional right to remain silent. Until the suspect knows exactly where the police are coming from and has spoken to a criminal defense lawyer who understands the laws and the suspect’s rights, it is very important to clearly request an attorney and remain silent. A vague or halfhearted request for a criminal defense attorney will not be good enough. A lot of people are spending a lot of time in prison because they thought they could talk their way out of a criminal case in a situation whwere the police are holding all of the cards.