Jacksonville Criminal Lawyer Blog

Florida Marijuana Case Thrown Out After Stop for No Rear View Mirror

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

In Florida, many drug cases start out as routine traffic stops. A police officer stops a driver for violating some traffic law, suspects that the driver has drugs in the vehicle and then ultimately searches the occupants and/or the vehicle, either after walking a drug dog around the vehicle or getting consent to search from the driver or determining some other basis for probable cause. However, if the initial traffic stop is not valid, any drugs found in the vehicle or on one of the occupants of the vehicle should be thrown out.

In a recent possession of marijuana case near Jacksonville, Florida, the defendant was stopped because he was driving his vehicle without a center rear view mirror. After stopping the defendant for that reason, the police officer said he saw bags of marijuana on the driver’s lap and arrested him for possession of marijuana.

The criminal defense lawyer filed a motion to suppress the evidence of the marijuana because the initial stop of the vehicle was illegal. The police officer was incorrect in assuming it is illegal to drive without a center rear view mirror. For that reason, the police officer did not have a valid basis to stop the driver. Since the initial stop was not legal, the evidence of the marijuana found after the stop was not admissible in court, and the possession of marijuana charge was thrown out.

Florida Law Enforcement Says Tax Return Fraud Cases Exploding

Published on: March 15, 2013 | by Lasnetski Gihon Law

As tax season approaches at the beginning of each year, we normally see quite a few tax return fraud cases, both in the news and as new criminal defense cases in the Jacksonville, Florida area. Most of these cases involve someone obtaining social security numbers and other identification information for people and then filing false returns for tax refunds in their names. Other cases might involve allegations of suspects counterfeiting tax return checks and then getting other people to deposit or cash them without proper authorization.

According to the government, tax return fraud has gone up significantly over the last several years. According to the IRS, the state with the most tax return fraud is Florida. One suspected reason is that Florida has a higher population of elderly people who may be more vulnerable fraud victims. Overall, the government reports that there were 1.2 million cases of tax fraud in the United States in 2012, which is a huge increase from the approximately 48,000 cases in 2008. Of course, these are only the reported numbers. No one knows the actual number of tax return fraud cases out there each year.

The IRS is responding by allocating agents and money towards tax return fraud. However, they are only catching a fraction of the people involved in tax return fraud. The IRS has acknowledged that the better way to approach this issue is to make it more difficult to commit tax return fraud. Apparently, as it stands now, if someone has your name and social security number, it is fairly easy to file for a tax refund and redirect the funds to another account or address.

Local Police in Jacksonville, Florida Area Going After Synthetic Marijuana Cases

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

As criminal defense lawyers in the Jacksonville, Florida area, we have taken on several new cases involving arrests for synthetic marijuana. These cases typically involve undercover police officers going into convenience stores and similar businesses that sell items they consider synthetic marijuana. The undercover officers will have a conversation with the store clerk about purchasing the substance to smoke it. They opften come back later in uniform and seize all of the alleged synthetic marijuana in the store, arrest the clerk and owner and sometimes seize any store money they can get their hands on.

Synthetic marijuana is not a legal term; it is a term invented by the police to attempt to make this product appear illegal. This alleged synthetic marijuana is typically sold under different names and can be used for different purposes, including smoking.

The government hears stories of some kids having side effects from the substance, and then they want to get involved and make the substance illegal. However, the problem is that something can only be illegal if a proper law has been passed sufficiently informing the public that the substance is illegal. The police cannot arrest someone because he/she is selling something the government thinks is dangerous in some cases. In order for a person to be properly charged with a state crime, the state legislature must pass a law making the possession and sale of the specific substance illegal and specifically identifying exactly what substance is illegal to possess and/or sell.

DEA Conducts Video Surveillance on Private Property Without a Search Warrant

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

In Wisconsin, there is a pending marijuana case that started when the police received a tip that the defendant was growing marijuana plants on his property. The local police solicited the assistance of the DEA who went on the property without consent and without a search warrant and installed video cameras to record the marijuana grow operation and the activities of the defendant who owned the land. Once the video cameras recorded the defendant handling marijuana from the marijuana plants, the DEA obtained a search warrant. The police found thousands of marijuana plants on the property and arrested the defendant on multiple serious marijuana charges.

The criminal defense lawyer for the defendant filed a motion to suppress the evidence on video and also the evidence seized by police after obtaining the search warrant. The defendant had a large piece of property, but it was marked with “No Trespassing” and “Private Property” signs. The state argued that the DEA went into an open field and the DEA agents were not trespassing. For some reason, the Wisconsin court decided it was legal for the government to come onto the defendant’s property and install surveillance cameras without a search warrant. Normally, the police would need a search warrant to enter upon a person’s private property to search or conduct surveillance. However, the case has been appealed to the United States Supreme Court so the ultimate decision as to whether the DEA acted legally has not yet been made.

Senator Calls for an End to Mandatory Minimum Prison Sentences

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

One of the worst ideas in all of criminal law is the mandatory minimum prison sentence for a particular crime. In criminal law, you have the prosecutor who reviews the case and represents the state. His/her job is to prosecute people who are guilty of crimes, present the case on behalf of the state and get a reasonable and appropriate sentence. The defense attorney’s job is to prepare the case on behalf of the defendant- get the case dismissed or reduced or win the case at trial if there is insufficient evidence or legal deficiencies or try and obtain the best sentence for the defendant if the state can prove the defendant committed the crime beyond a reasonable doubt. The judge’s job is to preside over the case, make sure both sides follow the rules and sentence the defendant to an appropriate sentence if the defendant pleads guilty or loses at trial. Those three individuals are the best equipped to assume those roles and recommend or decide what an appropriate sentence is because they know the most about the individual defendants and the specific circumstances of each case.

Mandatory minimum prison sentences are dictated by legislators in the state capital who know absolutely nothing about the details of each defendant and each case and are often pushing legislation with an eye on reelection. As a result, the discretion is taken away from the judge who hears about the case from both sides and is trained to make an informed, unbiased decision, and that discretion is placed squarely into the hands of the state or the uninformed legislature. When that happens you have defendants who face 15 year mandatory minimum prison sentences for illegally obtaining pain pills because they cannot afford them and do not have insurance although they have the same medical problems as people with money, who have health insurance and get the same pain pills through a doctor. When that happens, you have lawful gun owners who believe they used their gun responsibly in a self-defense situation who are forced to plead guilty and become convicted felons in order to get a better sentence and avoid a 3, 10 or 20 year mandatory minimum prison sentence if they risk a trial and the six strangers on the jury decide against them.

Mandatory minimum prison sentences are a perfect example of typical government overreaching with the result being bigger government, more taxpayer money wasted on the criminal justice system and completely illogical results dictated by government officials who have no idea what is going on in specific cases.

Florida Trafficking in Hydrocodone Case Gets Reversed Due to Prescription Defense

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

In a recent trafficking in Hydrocodone case near Jacksonville, Florida, the police executed a search warrant at the defendant’s home and found a pill bottle with pain pills beside his bed. The pill bottle indicated they were prescribed to the defendant’s mother who was not present at the time. They also found cocaine in a different room. The defendant was charged with trafficking on hydrocodone and possession with intent to sell cocaine.

At the trial, the defendant’s mother testified that she injured her back and obtained the prescription for Hydrocodone from her doctor. She left the pills at her son’s house when she recently visited him. The state’s position was that they only had to prove that the defendant possessed the Hydrocodone knowing that the pills were in fact Hydrocodone. However, there is a defense to possessing prescription drugs. If the defendant can establish that he had a valid prescription for the pills, he would not be guilty of trafficking in Hydrocodone. This defense would also apply to someone else who had a valid prescription for the pain pills who gave the defendant authority to possess them. For instance, if a wife had a valid prescription for pain pills and kept them in her purse and asked her husband to hold her purse while she helped the kids, the husband would be in possession of hydrocodone, possibly a trafficking amount, without a valid prescription. Obviously, in that situation, the husband would not be guilty of trafficking in hydrocodone because he had the wife’s authority to possess the pills, although we have seen the state try for a conviction in similar circumstances.

Additionally, what if someone’s mother went out, forgot her pain pills, had a flare up and called her son to pick up her pills from home and take them to her? If the son was stopped by police for speeding and the police officer found the pain pills in a bottle with someone else’s name on it, you can be sure there is a good chance that police officer would be looking to make an arrest for illegal possession of the pain pills or trafficking. At that point, it would be a credibility contest where a lot would be riding on whether a jury believed the son and the mother. But that is the nature of things during the never-ending war on drugs.

Defendant Convicted of Robbery Even When Victim Not in Fear of Violence

Published on: February 28, 2013 | by Lasnetski Gihon Law

In Florida, robbery is a serious felony offense that occurs when a person takes the property of another by the use of force, the threat of force, violence or putting the victim in fear of violence. Robbery is a second degree felony in Florida if no firearm or other weapon is used. If a weapon is used, then it becomes a first degree felony.

The definition of robbery would seem to require that the victim be placed in fear of violence. However, that is not the case. In a recent robbery case south of Jacksonville, Florida, the defendant went into a bank and gave the teller a note saying she was being robbed and to give him the money. Apparently, the teller was not worried about the defendant doing anything violent to her, but she did give him money. After the defendant was caught, his criminal defense lawyer argued that he did not commit a robbery because the defendant did not use force or place the victim in fear of violence. The victim agreed. However, the defendant was still convicted of robbery. Under Florida law, the defendant commits a robbery even if he does not place the victim in fear, if a reasonable person would have been in fear of violence under those circumstances. The court decided that although this victim was not in fear, a reasonable person would have been so the defendant’s robbery conviction was confirmed.

Florida DUI Case Thrown Out After Defendant Does Well on Field Sobriety Exercises

Published on: February 25, 2013 | by Lasnetski Gihon Law

In just about all DUI (driving under the influence of alcohol) cases in Florida, the police officer is going to request that the driver submit to field sobriety exercises. These are very difficult coordination and balancing tests that are often given to the suspect in parking lots or on the side of the road in poor lighting. The suspect is often nervous because the police officer, who is the sole judge of the field sobriety tests, already thinks he/she is drunk or he/she probably would not have asked the driver to take the field sobriety tests in the first place. The conditions under which a DUI suspect takes the field sobriety tests are far from ideal, and some people are not good at difficult balancing and coordination tests under any circumstances.

Anyone is allowed to refuse a field sobriety test. There are no repercussions with the department of motor vehicles or the courts, such as a driver’s license suspension, for refusing a field sobriety test. There may be very good reasons to refuse a field sobriety test- any injury, poor conditions, poor lighting, fatigue, nervousness, a police officer who seems overly aggressive or just a fear of not doing well based on all of the circumstances.

However, the best reason to refuse a field sobriety test may be that the field sobriety exercises are not videotaped. When a DUI suspect performs the field sobriety tests, there is only one judge, and that is the police officer who already suspects the driver is impaired from alcohol or drugs. The police officer will prepare a report, and if he/she does not think the driver performs well, he/she will write a very incriminating report. Why should a DUI suspect trust a police officer’s completely subjective findings during a field sobriety test when that test may be a crucial part of the state’s DUI case? If the police officer does not explain the tests well, how does a DUI suspect convey that to a judge or jury? Once the case gets to trial, it is the DUI defendant’s word against the police officer’s word. Because the police officer fails to bring a video camera to the DUI investigation, the defendant may be at the mercy of a biased police officer with no way of defending him/herself during a field sobriety test other than a he said/she said contest. Because of this subjective component to a DUI case, a driver should really think twice before taking a field sobriety test that is not recorded by a video camera.

In Florida Coercion is a Recognized Defense to Any Crime Except Homicide

Published on: February 22, 2013 | by Lasnetski Gihon Law

In Florida, the a defendant may use the defense of duress, or coercion, to just about any crime except homicide. As a result, a defendant cannot argue to a jury that someone forced him/her to kill another person, but it can be used in most other situations, where it applies. The defense of duress or coercion is not used often, and is rarely successful, but in order to assert such a defense, the defendant has to establish that he she was reasonably in danger that he/she did not cause, the danger involved significant harm to him/her or someone else, the danger must be imminent, the defendant had no way of avoiding the danger other than committing the crime, the crime was committed to avoid the danger and the harm the defendant avoided outweighed the harm caused by committing the crime.

So there are a lot of factors involved in presenting a proper duress defense, and those factors are very difficult to prove. The classic example would be where a drug user held a gun to a person or a family member and threatened violence if the person did not go to a pharmacy and fill out a fraudulent prescription for pain pills. If the defendant was arrested for trafficking in oxycodone and was able to establish that he/she got the pills to avoid violence, that could be a valid defense.

“Private” Conversations at the Police Department Can Be Recorded and Used Against the Defendant

Published on: February 20, 2013 | by Lasnetski Gihon Law

Every now and then we hear of cases where the state obtains good evidence against a defendant because the defendant made statements that he/she thought were private but could be overheard by the police. The more obvious examples are the calls made by jail inmates to friends and relatives outside of the jail. Those calls are going to be recorded by the state, and anything incriminating said during those calls can be used against the defendant in court.

Less obvious situations occur when a suspect is brought to the police station and allowed to have a “private” conversation with a friend or relative. In two recent cases, the police brought a suspect to the police station to question him. The suspect had a relative present who asked to speak to the suspect privately. The police put them in a room by themselves. In both cases, the police officers recorded the conversations. When the suspect made incriminating statements to their family members, those statements were used to convict the suspects of crimes.

When their cases went to court, the criminal defense lawyers for the suspects filed motions to suppress the incriminating statements to have them thrown out of court. They argued that the defendants had a reasonable expectation of privacy during their “private” conversations with relatives. However, when these conversations take place in a police department, it is unlikely that a court will determine that a suspect or defendant has a reasonable expectation of privacy in any conversation with a police officer, friend or relative in that environment. In other words, if a suspect or defendant is in a police station, he/she has to assume anything he/she says will be recorded and used against him/her in court.