Jacksonville Criminal Lawyer Blog

Witness Testimony at Bond Hearing May Be Used at the Trial

Published on: May 28, 2012 | by Lasnetski Gihon Law

When criminal defense attorneys handle bond hearings, they may not call witnesses on their own, and the state may not call witnesses for the criminal defense lawyer to cross-examine. At bond hearings, the issue to be decided is the bond amount the defendant needs to post in order to be released from jail while his/her case is pending. The judge is supposed to consider whether the defendant is a risk of fleeing the jurisdiction and/or missing court, is a danger to the community, is a risk to influence witnesses and other factors. At many bond hearings, the criminal defense lawyer and the prosecutor will state their respective positions to the judge and ask for the bond amounts they believe are appropriate. These bond hearings are often done without any witnesses. However, each side can call witnesses to testify at a bond hearing. They can be witnesses who know nothing about the case but know the defendant, or they can be witnesses who do not know the defendant but are familiar with the facts of the case.

When witnesses do testify, the lawyers typically do not consider the fact that the transcript of their testimony may be read at the actual trial. Some criminal defense lawyers may just focus on the bond issues which are not necessarily related to the facts of the case itself and the guilt or innocence of the defendant. Other criminal defense attorneys may use a bond hearing as an opportunity to cross-examine a witness on the other side with the idea that he/she can lock that witness in to a statement favorable to his/her client’s side to be used as impeachment in case that witness tries to testify differently later at trial.

However, it is possible, when a witness is testifying about key aspects of the case at a bond hearing, that the bond hearing testimony is the only testimony that will ever come from that witness and it will be read back to the jury at the trial without that witness showing up. In a recent murder case south of Jacksonville, Florida, the state had a witness to the murder testify at the bond hearing to key facts about the murder which incriminated the defendant. When the trial was scheduled many months later, that witness was gone. He had been threatened after testifying at the bond hearing and told the state he was too scared to testify at the trial. The state attempted to locate him, but they were unsuccessful. Since they could not locate the defendant and bring him to trial, the state moved the court to read the transcript of his testimony from the bond hearing.

Federal Judge Throws Out Governor Scott’s Order to Drug Test State Employees

Published on: May 25, 2012 | by Lasnetski Gihon Law

Florida Governor Rick Scott issued an order in March of 2011 which would allow the state to drug test its employees randomly and without any suspicion of drug use or improper conduct. The order has been challenged as a violation of a person’s right to be free from unreasonable searches and seizures under the Constitution. Governor Scott defended the order by comparing a drug test to a requirement to make certain financial disclosures.

The federal court noted that everyone has a Constitutional privacy interest in his/her bodily fluids. As a result, the state cannot intrude upon one’s Constitutionally protected privacy interest without a specific reason. The Governor also cannot condition a state job or any other government benefit on one’s willingness to give up his/her Constitutional right to privacy.

As it stands, Governor Scott’s two attempts to increase the role of government by drug testing people, whether those with state jobs or those seeking welfare benefits, have been blocked by federal judges as violations of the Constitution.

Police Activating Emergency Lights May Be Enough for a Detention in Florida

Published on: May 22, 2012 | by Lasnetski Gihon Law

Under search and seizure law in Florida, the police need to have reasonable suspicion that a suspect is involved in criminal activity before he/she can briefly detain the suspect for further investigation. A detention does not necessarily consist of a police officer telling a person to stop or stopping a person for a traffic violation. Sometimes, a detention can be a little more subtle. If the police officer does not have a legitimate legal basis to detain a suspect, any evidence that police officer may find as a result of the detention should be thrown out.

In a recent drug case near Jacksonville, Florida, a police officer was patrolling a known drug area in the early morning hours when he saw someone alone in a vehicle parked near a residential area. The vehicle was legally parked, but the officer found it suspicious that the person was alone in a vehicle at that hour with all of the lights off. The police officer drove up to the suspect and stopped his police car near the vehicle. The police officer activated his emergency lights because he wanted to make sure other cars could see his vehicle and shined his flashlight into the suspect’s vehicle. The police officer approached the suspect and said he smelled an odor of marijuana coming from the vehicle. The police officer said he saw a partially smoked marijuana blunt in the ashtray and arrested the suspect. Upon arrest, the police officer found some cocaine on the suspect. The suspect was eventually charged with possession of marijuana and possession of cocaine.

The criminal defense lawyer filed a motion to suppress the evidence of the marijuana and the cocaine. He argued that the police officer did not have a right to detain the defendant just based on a suspicion when he merely saw the defendant alone in his vehicle in the dark. The state argued that the police officer did not actually detain the defendant until he smelled the marijuana and saw the marijuana blunt. At that point, the police officer did have reasonable suspicion to detain the defendant for committing the crime of possession of marijuana and had probable cause to arrest him on that charge.

Who Can the State List as the Owner of the Premises in a Burglary Case in Florida?

Published on: May 19, 2012 | by Lasnetski Gihon Law

In Florida, it is a burglary to enter the premises of another with the intent to commit a theft or other felonies. In order to prove a burglary case, the state has to prove the owner of the premises. The state cannot just prove that the defendant did not own the premises; the state has to prove who did own the premises at the time of the burglary. Of course, this is fairly easy and straightforward when the burglary is of a person’s home or automobile. However, when the burglary is of a commercial property, determining the owner of the premises may be more difficult.

The Florida courts changed the law years ago to allow the state to allege that the manager on duty is the owner of the premises for the purposes of a burglary charge,. The idea is that the manager has lawful control of the premises so he/she can be listed as the owner in a burglary case.

However, criminal defense lawyers should watch for a situation where the state lists an employee of the business as the owner. When the police respond to a burglary of a business, they often only get the name of whomever reports the crime or is present when the police arrive. The prosecutor may never get the name of an owner or manager and/or may not know the law requires the prosecutor to state the name of the owner or manager in the burglary charge. If the state files a burglary charge involving a business and lists an employee as the owner, or someone else who is not the owner or manager of the business, the state cannot prove a case of burglary because all of the essential elements are not met. The criminal defense lawyer should move for a judgment of acquittal after the state fails to provide evidence of the owner or manager of the premises.

Florida Man Convicted of Aggravated Battery With a Deadly Weapon For Hitting Victim With Plastic Broomsticks

Published on: May 16, 2012 | by Lasnetski Gihon Law

In a recent case just south of Jacksonville, Florida, a defendant was arrested and charged with aggravated battery with a deadly weapon, and the alleged deadly weapons were plastic broomsticks. After a trial on the aggravated battery with a deadly weapon charge, the jury convicted him. In Florida, a person commits an aggravated battery if he/she touches or strikes a person without authorization with a deadly weapon. The crime carries a maximum penalty of 15 years in prison. That is quite serious for touching a person with an object when “deadly weapon” is not defined by the Florida statute.

In this case, the deadly weapon consisted of two plastic broomsticks. Because “deadly weapon” is not defined by the Florida statute, the police, and then a prosecutor and then a jury all determined plastic broomsticks were sufficient to meet the definition of “deadly weapon.” At the aggravated battery trial, the prosecutor did not bring the broomsticks to the trial and introduce them into evidence so the jury never saw them. The prosecutor did not even show the jury pictures of the broomsticks. Apparently, the only evidence about the broomsticks was witness testimony that they were flimsy, bent and easily broken after one or two usages. There was even testimony that the broomsticks could not hurt anyone seriously.

The criminal defense lawyer moved for a judgment of acquittal after this evidence. While the Florida statute is vague about what constitutes a “deadly weapon”, in order to prove the crime of aggravated assault with a deadly weapon, the state must prove beyond a reasonable doubt that the defendant used an object that will likely cause death or great bodily harm when used in its ordinary manner. Under this definition, which was created by the courts, obvious examples include guns and knives. However, an assortment of other objects can be considered deadly weapons if they are used in a way that is likely to cause great bodily injury or death. On the other hand, many objects cannot be considered deadly weapons because they cannot cause great bodily injury or death when used in their ordinary manner. Flimsy, plastic broomsticks that break easily would seem to fall into this latter category. However, for some reason, the judge and the jury disagreed, and the defendant was convicted of aggravated battery with a deadly weapon for hitting the victim with the plastic broomsticks.

Obama Administration Releases New Drug Control Strategy

Published on: May 13, 2012 | by Lasnetski Gihon Law

With the release of the proposed 2013 budget, the Obama administration also released its new drug control strategy. Although the Obama administration has given indications in the past that it’s going to take a more considerate and cost-effective approach to the old, expensive and ineffective War on Drugs, the new strategy does not seem to reflect a new direction. The new strategy allocates more than $25 billion for national drug enforcement, with approximately 60% of the money going towards actual enforcement while only approximately 40% is going towards prevention and treatment. In other words, it appears that approximately 60% of the more than $25 billion in taxpayer money is going towards the same policies and procedures that have not seemed to make any significant progress in drug usage and drug crimes.

The Obama administration is recognizing the shift in drug usage and drug crimes towards pain pills without a prescription and is allocating more funds accordingly. The administration is also calling for increased drug testing with immediate penalties for those who fail drug tests. This includes people under court supervision as well as people in the workplace, where applicable. The new budget and strategy do not give much, if any, credence to those supporting the legalization of marijuana, whether for medicinal purposes or otherwise.

All in all, the Obama administration’s new drug strategy does not appear to be much different from any other president’s drug strategies in recent years since the War on Drugs was initiated.

The Attorney-Client Privilege in Florida

Published on: May 10, 2012 | by Lasnetski Gihon Law

In Florida, communications between a lawyer and his/her client are general privileged. This means that neither the state, the judge, the jury, the other party nor anyone else has a right to discover what has been said or otherwise communicated between a client and his/her attorney.

This is obviously crucial in criminal cases as the client often relates critical, and sometimes very damaging, information to the lawyer. Of course, the attorney-client privilege also applies to personal injury, civil, divorce and other legal cases where important, confidential information is routinely discussed.

This attorney-client privilege applies even before the client actually retains the lawyer or if the prospective client decides not to retain a lawyer at all. Most often, before a person decides to hire an attorney, he/she will schedule a meeting to discuss the case and get familiar with each other. Important matters about the case that the client wishes to remain confidential are often discussed. The person may decide not to hire that lawyer. The person may speak with several lawyers before deciding upon one of them or none of them. In these instances, the attorney-client privilege remains intact, and the lawyers are not permitted to disclose what was discussed with the person even if the person never retains that attorney for any reason.

Does Violating an Employer’s Computer Policy Violate the Federal Computer Fraud and Abuse Act?

Published on: May 7, 2012 | by Lasnetski Gihon Law

The federal Computer Fraud and Abuse Act (CFAA) was intended to be an anti-hacking criminal statute to go after people who hack into databases and computer systems without authorization to misappropriate data. However, certain prosecutors have attempted to expand their powers under the Act and use the Computer Fraud and Abuse Act to prosecute people who were not intended to be covered by the law

In a federal criminal case out of California, prosecutors charged a defendant for violating the Computer Fraud and Abuse Act for violating certain computer-related policies of his employer. In this case, the defendant was an employee of an executive recruiting company named Korn/Ferry. He left the company to start a competing company. The defendant contacted some of his former co-workers who were still working at Korn/Ferry and asked them to download confidential information from the Korn/Ferry computer system to assist the defendant with his new company. The employees were allowed to access the Korn/Ferry computer database because they still worked there. However, Korn/Ferry’s policies did not allow them to use the information in the database to help a competing business.

The United States Attorney’s Office charged the defendant with violating the Computer Fraud and Abuse Act for aiding and abetting the Korn/Ferry employees in exceeding their access to the Korn/Ferry computer system to defraud the company. The criminal defense attorneys moved to dismiss the CFAA charges. They argued that the CFAA was intended to punish hackers who access computer databases without authorization, not people who have authorization to access a computer database but misuse the information in violation of company policy.

Police Track Personal Cell Phones Without a Warrant

Published on: May 4, 2012 | by Lasnetski Gihon Law

It is safe to say that most people in this country own a cell phone and use it to communicate in a variety of ways. There is a growing trend for people to cancel their landline phone numbers at home and rely exclusively on their cell phones. What people may not know is that the various law enforcement agencies around the country routinely track cell phones without warrants and without notifying the user in any way.

This tracking can take the form of tapping into the GPS information on a phone to learn a person’s location (which of course is very useful if a child or other person is missing). Most phones these days have GPS capabilities so their locations can be tracked. The police tracking also takes the form of directing phone companies and software companies like Google and Apple to give the law enforcement agencies location information, text messages and data that can be used for investigative purposes. Law enforcement agencies can also have the phone companies clone a person’s cell phone so the agency can receive the same text messages and other data as the user.

Some law enforcement agencies do get search warrants before seeking this kind of information. However, many do not which leaves a lot of discretion with the various police agencies and gives them free reign to intrude into a person’s private life for “investigative purposes”, whatever that may mean in any particular case.

What Constitutes the Crime of Robbery in Florida?

Published on: May 1, 2012 | by Lasnetski Gihon Law

In Florida, robbery involves taking the property of another with the use of violence, force or placing the victim in fear of violence. If no firearm or other weapon is used, robbery is a second degree felony which carries a maximum penalty of up to 15 years in prison. Of course, if a gun or other weapon is used to commit the robbery, the robbery charge can be much more serious.

Issues do arise in robbery cases surrounding when the force is used. In order for the crime of robbery to be committed, the force must be used “in the course of the taking” of the property. What exactly that means has not always been clear. As a result, the robbery law was changed to clarify what is “in the course of the taking.” The robbery statute defines that time period as the period prior to the taking, contemporaneous with the taking and subsequent to the taking. Read literally, that includes all of the time. The statue does narrow the time period down to require the force to be used in a continuous series of acts with the taking.

Obviously, if force is used immediately prior to the taking to put the suspect in a better position to take the property, if force is used as the suspect takes the property and if force is used immediately after the taking in order to get away with the property, the state will have a stronger robbery case. However, if some time elapses between the force and the taking, or the taking and the force, the incident is less likely to be a robbery.