Jacksonville Criminal Lawyer Blog

Can Police Officer Stop Driver for DUI Out of His Jurisdiction in Florida?

Published on: April 17, 2013 | by Lasnetski Gihon Law

In just about all criminal cases in Florida, a person will be arrested by a member of law enforcement who is properly working in that jurisdiction. For instance, if a person is speeding in Duval County (which is in Jacksonville) Florida and a police officer plans to make a traffic stop and possibly conduct a DUI investigation, the driver will likely be stopped by a Jacksonville Sheriff’s Office officer. If a person commits a theft in Orange Park, Florida, he/she will likely be arrested by a member of the Clay County Sheriff’s Office. There are exceptions, of course. The Florida Highway Patrol has jurisdiction all over the state so an FHP officer might stop a person in any city or county in Florida. Additionally, if a Jacksonville Sheriff’s Office officer sees a person commit a crime in Duval County/Jacksonville and there is a car chase that goes north into Nassau County, the JSO officer will not likely stop at the county line and let the suspect get away. Of course, Nassau County police officers will become involved once the suspect gets into Nassau County.

There are other examples where a police officer can make an arrest for a crime outside of his/her jurisdiction. There is something in Florida called a Mutual Assistance Agreement between police agencies whereby police agencies can have their officers assist the others by formal agreement. If there is a proper Mutual Assistance Agreement, a police officer can make an arrest for DUI or other crimes if the police officer is complying with the Agreement. After such an arrest, the state has the burden of proving that the arrest was in compliance with the Mutual Assistance Agreement. The state has to actually present the formal agreement in court, prove that the agreement was in effect at the time of the arrest and prove that the police officer strictly complied with the terms of the agreement. If the state does not prove each of those elements, the arrest and any evidence obtained as a result of the arrest by the out of jurisdiction officer will likely be inadmissible. However, if the state can prove these elements, the fact that the police officer was out of his/her jurisdiction would likely have no effect on the state’s case.

Constructive Possession of Marijuana and Oxycodone Case Thrown Out in Florida

Published on: April 14, 2013 | by Lasnetski Gihon Law

In Florida, in order for the state to prove a drug possession case, it has to prove that the defendant either actually possessed the illegal drugs or constructively possessed the illegal drugs. Actual possession is fairly straightforward. if a person is holding drugs or has them in his/her pocket, that would be actual possession. Constructive possession of drugs can be more complicated and can be more difficult to prove. It does not mean the state cannot prove drug possession, but it can certainly make it harder for the state to prove its drug case. Constructive possession basically means the drugs are located in a place where the defendant knows they exist and the defendant has some control over them.

As an example, I have some CD’s in a case in my car. I am nowhere near my car, but the car is in my name, a lot of other things belonging to me are in the car and I have the keys to the car which is locked right now. There is a strong argument that I am in constructive possession of my CD’s. Of course, this scenario also lends itself to some defenses to a possession charge. If other people also have keys to the car, I share the car with other people, other people’s belongings are also in the car and/or someone else is using my car when the police find the CD’s inside, there is an argument that those are not my CD’s and there is no evidence I put them there or even know they are in my car.

In a recent case near Jacksonville, Florida, undercover police officers conducted a purchase of Oxycodone pills from the defendant. They arrested the defendant for sale of Oxycodone. They went back to his residence, where he came from prior to the drug sale, and searched it. Inside, they found more Oxycodone and marijuana. The defendant was also charged with possession of marijuana and trafficking in Oxycodone for the drugs found in the house.

The Crime of Neglect or Abuse of Elderly or Disabled in Florida

Published on: April 11, 2013 | by Lasnetski Gihon Law

In Florida, it is a felony crime to abuse or neglect an elderly or disabled person. While such a crime sounds bad, it is also very vague as to what is required to actually commit the crime in Florida. Under Florida law, elder abuse or abuse of a disabled person includes inflicting psychological or physical injury upon an elderly or disabled person. Criminal neglect of an elderly or disabled person involves a failure to provide supervision, care or services to the elderly or disabled person to maintain his/her psychological and/or physical health. If a person commits abuse on an elderly or disabled person and that person is not seriously injured, it is a third degree felony in Florida. The same goes for neglect of an elderly or disabled person. If the victim is seriously injured or certain aggravating factors are present, the crime could be a second or first degree felony.

However, not all improper conduct, or omissions, involving the elderly or disabled that results in injury to the alleged victim qualifies as a crime in Florida. In a recent case south of Jacksonville, Florida, a caretaker was responsible for taking care of a 90 year old woman. The allegations against the defendant were that she would give the woman sleeping pills that were not prescribed for her to put her to sleep so she could have male friends over. This occurred over a six month period. As a result, the state charged her with neglect of an elderly and/or disabled person.

One issue with facing a charge like this is a jury will often overlook the details of the case and the specifics of the law and find a defendant guilty out of sympathy for the victim and/or disdain for the defendant. And that is what happened in this case. The problem was the state made an error by charging the woman with elder neglect. Neglect implies that the defendant failed to do something that was necessary to maintain the well being of the victim. In this case, the facts suggested that the defendant committed an act, or many acts, that placed the victim at risk of serious injury as it is dangerous to give someone, particuarlyl an elderly person, a drug that is not prescribed for her. While the defendant’s conduct was wrong, and it was probably abuse, it was not neglect because it was not an omission but an act that created the risk to the victim.

RICO Charge in Florida

Published on: April 8, 2013 | by Lasnetski Gihon Law

Recently in the news, there were several stories of a large number of people in the Jacksonvile area and throughout Florida who were arrested on RICO charges relating to internet cafes and the Allied Veterans of the World. RICO is not a charge that is filed very often by state prosecutors, but as criminal defense lawyers working in the Jacksonville, Florida area, we have handled several RICO cases.

RICO stands for Racketeer Influenced and Corrupt Organization. RICO laws in the various states and in the federal system were designed to deal with organizations that allegedly commit crimes on an ongoing basis and to also make it easier to catch people who have a more supervisory or leadership role in an organization that commits crimes as opposed to lower level people who might have a more hands-on role. Over the years, prosecutors have used RICO laws to go after fairly loosely tied groups of people that are not in a discrete organization but have some connection in relation to the commission of alleged crimes. In most states, including Florida, the penalties for a RICO violation are very severe.

In Florida, to prove that one or more people committed a RICO violation, the state must prove the defendant participated in an enterprise through a pattern of racketeering. That, in and of itself, does not tell us much, and there is a lot of case law in the various states that explain what an enterprise is, what a pattern is and what racketeering means. In relatively simple terms, the state does not need to prove much to establish a pattern. Basically at least two criminal acts that are similar in some way may be enough to establish a pattern. A pattern of racketeering occurs when a defendant commits two or more specific crimes referenced in the RICO Act. Normally, a large number of crimes will qualify for a predicate act under the RICO laws, even where the criminal conduct is not very serious. The RICO Act is one way to turn less serious criminal conduct on an individual basis into very serious criminal conduct when done multiple times with other people involved. As for the participation part, the state would have to prove that the defendant participated in the enterprise while knowing the criminal objectives of the enterprise and agreeing to further that purpose.

Police Cannot Bring Drug Dog To Sniff House Without a Search Warrant

Published on: April 5, 2013 | by Lasnetski Gihon Law

We wrote a previous entry about a case being decided by the United States Supreme Court regarding whether the police can have a drug dog walk onto someone’s property and sniff for the odor of illegal drugs without a search warrant. In many cases, a police officer will call for a drug dog, or K-9, during a traffic stop when the police officer believes the person has illegal drugs in his/her vehicle. If the drug dog alerts to the odor of marijuana, cocaine or other illegal drugs as it walks around the vehicle, then the police will search the vehicle looking for the drugs. The traffic stop situation is different from the issue decided in the Supreme Court case because, among other reasons, in the case of a traffic stop, the police presumably had a legal basis to stop the vehicle- typically a violation of a traffic law. The police officer cannot keep a driver who violated a traffic law at the scene for too long, but the police officer would be able to hold the driver at the scene while he/she is writing the traffic ticket and for a reasonable period of time thereafter.

However, in the case of a person’s house, if the police officer does not have sufficient information to obtain a search warrant, he/she would typically not have a legal basis to come onto a person’s property to search it. The state would argue that a drug dog sniffing around the outside of a person’s home is not really a search under the Constitution, but that was one of the issues the Supreme Court had to consider.

With its decision, the Supreme Court decided that a drug dog sniffing around a person’s home is a search, as contemplated by the United States Constitution, so people have a right to privacy in the area around their homes when it comes to drug dogs and police. As a result, the police cannot just go onto a person’s property with a drug dog and have it smell around for the odor of illegal drugs. In its decision, the Supreme Court correctly noted that there is a higher privacy interest when it comes to a person’s home, as opposed to a vehicle during a traffic stop.

Florida 10/20/Life Law Allows for Consecutive Minimum Prison Sentences for Single Episode

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

The Florida 10/20/Life law creates very severe penalties for people convicted of certain crimes where a gun was involved. The law provides for a mandatory minimum sentence of 10 years if the defendant displays a firearm, a mandatory minimum of 20 years if the defendant discharges the firearm and a mandatory minimum of 25 years to life if the defendant shoots someone and causes serious injury or death. Additionally, a defendant can be sentenced to multiple consecutive mandatory minimum prison sentences for a single episode if there are multiple victims.

In a recent case in Jacksonville, Florida, the defendant committed an armed robbery with a firearm against two people in a single episode. He threatened both of them with a gun. Police arrived during the armed robberies, and the defendant fired at the officers. The defendant was charged with two counts of attempted murder for shooting at the police officers and two counts of armed robbery. The 10/20/Life statute applied to both charges since the defendant displayed a firearm during the armed robbery and discharged the firearm during the attempted murder of the police officers. After the trial, the defendant was given the 10 year minimum mandatory sentence for each of the two armed robbery charges plus additional 20 year minimum mandatory sentences for each of the two attempted murder charges. Because the mandatory minimum sentences were run consecutively to each other, the defendant was sentenced to a total of 60 years of mandatory minimum prison time.

The criminal defense lawyer objected to the consecutive mandatory minimum prison sentences for a single episode. The court held that the 10/20/Life statute does allow for consecutive minimum mandatory sentences where a defendant discharges a firearm during a single episode but with more than one victim. Therefore, the two consecutive 20 year prison sentences were affirmed. While there did appear to be some precedent for invalidating consecutive mandatory minimum prison sentences where a defendant does not discharge the firearm, the court approved the consecutive mandatory minimum sentences for the armed robberies as well. Therefore, the court held that a defendant can be sentenced to multiple consecutive mandatory minimum prison sentences under the 10/20/Life law even where the defendant uses the firearm in a single episode, if multiple victims are involved.

DNA Insufficient to Prove Possession of a Firearm by a Convicted Felon Charge in Florida

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

Recent articles and financial reports from gun manufacturers have made it clear that gun purchases have significantly increased over the last several months. As more people purchase guns, it is important to understand the laws surrounding firearms as Florida has some very serious gun laws that come with very serious penalties. One such law that comes with a serious mandatory minimum prison sentence is the Florida law that says that a person who has been convicted of a felony in any state cannot possess a firearm in Florida. Possession means not just the obvious act of holding the firearm or having it in one’s pocket or waistband but can also include constructive possession where a person does not actually have the firearm on him/her but has it a place where the evidence suggests he/she knows it is there and has control over the firearm.

In a recent possession of a firearm by a convicted felon case south of Jacksonville, Florida, the police searched the defendant’s apartment and found a gun under the mattress in one of the rooms. The defendant lived in the apartment with two other people. The police were able to get DNA from the grip of the gun, and it came back to the defendant. The defendant had been convicted of a felony crime several months prior to the police finding the gun.

The state charged him with possession of a firearm by a convicted felon since he was recently convicted of a felony and the police found a gun in his apartment with his DNA. The criminal defense lawyer argued that there were other people in the apartment, and the gun belonged to one of them. Additionally, although there was DNA on the gun, the state’s forensics expert could not say when that DNA was transferred to the gun. It was possible that the defendant handled the gun before he was recently convicted of a felony.

Police Officer in Florida Who Sees Drugs in Home Can Enter Without a Search Warrant

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

The general rule in Florida is that a police officer is not permitted to enter a suspect’s home without probable cause and a valid search warrant signed by a judge or consent from someone with authorization. The Constitutional protection against unreasonable searches and seizures provides the greatest protection in one’s home. However, there are exceptions to this rule. One exception is that the police may be able to search the residence if there are exigent, or emergency, circumstances.

For instance, in a case outside of Jacksonville, Florida, the police were called to a reported battery. When they arrived, the door to the defendant’s apartment was open, and the police officer saw the defendant sitting on a couch with some marijuana in front of him on the coffee table. The police officer entered the apartment, seized the marijuana and arrested the defendant for possession of marijuana.

The criminal defense attorney filed a motion to suppress arguing that the police officer did not have a right to enter the residence and seize the marijuana because he did not have consent to enter the apartment and did not have a search warrant. Normally, the marijuana evidence would be thrown out, but the court found that there were sufficient exigent circumstances for the police officer to enter the apartment and seize the marijuana. The relevant factors were that the police officer was properly outside of the apartment when he observed the marijuana, the marijuana was clearly recognizable as illegal and the defendant could easily destroy the marijuana if the police officer had to take the time to get a search warrant.

Consent for Police to Search in Florida is Limited in Scope

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

In Florida, many drug cases arise after a suspect has given the police consent to search. We have a hard time understanding why people give police consent to search when they know they are in possession of drugs or other incriminating evidence, but they do quite often. When a suspect gives the police valid consent to search his/her person, vehicle, residence or anything else, it eliminates the need for probable cause and a search warrant. It is often a shortcut between investigation and arrest.

However, when a suspect gives the police consent to search, it can have its limits. The consent to search should be limited to the area that is agreed to by the suspect. For example, if a person is standing in his front yard, the police ask to search his person and the suspect agrees, the police cannot also go into his house without additional consent covering his house.

In a recent methamphetamine case near Jacksonville, Florida, the police received a tip that the defendant was manufacturing methamphetamine at his house. The police went to his house and saw that the defendant was burning something in a pit in his backyard. The defendant said he was just burning trash. The police asked for consent to look around the pit to confirm his story. After looking around the pit, the police saw a pill bottle on the patio and opened it. Inside, they found powder methamphetamine and arrested the defendant for possession of methamphetamine.

Florida 10/20/Life Statute Applies to Accidental Firearm Discharges As Well

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

In Florida, the 10/20/Life statute is a law that provides for minimum mandatory prison sentences for people convicted of certain crimes involving guns. In such cases, if a person possesses a firearm during the crime, he/she faces a 10 year minimum mandatory prison sentence. If he/she discharges the firearm, the minimum mandatory prison sentence increases to 20 years, and if the firearm discharges and causes serious bodily injury or death to someone, the minimum mandatory prison sentence is 25 years to life.

The 10/20/Life statute applies even when the discharge of the firearm was accidental. In a recent murder case south of Jacksonville, Florida, the defendant got into a fight with another person. During the fight, the defendant took out a gun and hit the other person with it. As he hit the other person with the gun, it discharged and killed another person standing near the fight. The defendant was charged with murder for the victim who was killed and aggravated battery with a firearm for the person he hit with the gun. After he was convicted of both charges at trial, the judge sentenced him to life in prison under the 10/20/Life statute.

The criminal defense lawyer objected to the life in prison sentence arguing that 10/20/Life did not apply where the discharge of the firearm was accidental. However, the court disagreed. The court found that the purpose of the 10/20/Life law is to discourage people from having or using a firearm during the commission of a crime because the presence of a firearm increases the risk of serious injury or death. The court found that this was exactly one of the kinds of cases the 10/20/Life statute was intended to address. As a result, the life prison sentence for the accidental discharge was upheld.