Jacksonville Criminal Lawyer Blog

911 Calls Are Recorded and Can Be Used in Court, But There Are Exceptions

Published on: February 21, 2012 | by Lasnetski Gihon Law

In Florida, it is illegal for a person to record another person’s oral communications (whether on the phone or in person) without consent of all the parties to the conversation or a court order. If the police or any other person secretly records an incriminating statement of a defendant without the defendant’s knowledge and consent or a court order, that recorded statement cannot be used in court. However, there are exceptions to the law that says these secret recordings are admissible in court.

Most people understand at this point that 911 calls are recorded and generally can be used against the defendant at trial. This includes incoming calls into the 911 operator as well as outgoing calls from the 911 operator in certain situations. If someone calls 911 and the 911 operator has to call that same number back in order to obtain further information to respond to the emergency, that call can be recorded and used in court just like an incoming call to 911. However, those are the only two situations when a 911 operator’s call can be recorded and used in court against a defendant.

A recent aggravated assault and possession of drugs case near Jacksonville, Florida presented a slightly difference scenario in which the state tried to use a recorded 911 call against the defendant. In this case, the 911 operator received a call from a neighbor who indicated there was a disturbance next door. The neighbor gave the 911 operator the phone number of the house where the disturbance was occurring. The 911 operator called the number. The phone calls was answered, but no one spoke. The line remained open, and the 911 operator heard a voice threatening to shoot the residents of the home. The police arrived and found the defendant with a gun, marijuana and pain pills without a prescription.

In Florida, Recorded Conversation in Police Car Can Be Used At Trial

Published on: February 18, 2012 | by Lasnetski Gihon Law

In Florida, a police officer may have a recording device in his/her vehicle. This obviously becomes important if the defendant makes statements after an arrest while sitting in the police car, whether to the officer, to another person detained in the vehicle or in any other context. Can the state use the secretly recorded conversations of a defendant in a police car at the trial?

In a recent robbery case south of Jacksonville, Florida, the defendant and his friend were stopped by a police officer who suspected them of committing a robbery nearby. The police officer put both of them in the back of his police car. In the back of the police car, the defendant made incriminating statements about the robbery in a conversation with his friend. These statements were recorded and used by the State against the defendant at the robbery trial.

The criminal defense lawyer tried to prevent the statements from being admitted at trial. He argued that the statements were hearsay and testimonial as they were obviously recorded to be used against a defendant at trial.

President Obama Announces New and Improved Mortgage Fraud and Securities Unit

Published on: February 15, 2012 | by Lasnetski Gihon Law

State of the address time often means the announcement of a new unit or task force to address crimes that have been occurring with increasing regularity for some time prior to the announcement. The 2012 speech was no exception. In last month’s address, President Obama announced the creation of a new unit designed to investigate fraud crimes. Specifically, the new unit will apparently be focusing on mortgage fraud and securities fraud cases.

The new unit will be referred to as the Unit on Mortgage Origination and Security Abuses. it is not exactly clear why this new unit was created when President Obama announced the creation of an ostensibly similar task force back in 2009- the Financial Fraud Enforcement Task Force. It could be that this new task force/unit is more specialized in the areas of greater need and is a subunit of that larger task force.

The new unit will be comprised of state and federal law enforcement officials. Among other duties, they will be looking at people they allege contributed to the financial crisis by combining and selling mortgage-backed securities.

Stealing From A Porch May Or May Not Be A Burglary in Florida

Published on: February 12, 2012 | by Lasnetski Gihon Law

In Florida, burglary of a dwelling is a very serious felony crime. Burglary clearly includes entering someone’s residence with the intent to steal something inside. However, in Florida, a burglary can include more than just a person’s home. A dwelling is defined as not just the home but also any attached porch. For instance, if a home had an enclosed porch attached, it would be a burglary if a person entered the porch area and stole something even if he/she never entered the actual residence.

Some residences have porch areas that are not enclosed. The porch may consist merely of a concrete slab that abuts a part of the house. If a person walks onto a unenclosed porch to steal property, is that a burglary of a dwelling?

In a recent burglary case in Jacksonville, Florida the defendant was arrested for stealing a bicycle that was on or near an unenclosed porch area that was partially covered by the second floor balcony. The porch area was in front of the residence and had no posts or enclosures indicating it was an attachment to the home.

Attaching GPS Device on a Vehicle is a Search Under the United States Constitution

Published on: February 9, 2012 | by Lasnetski Gihon Law

It is clear that going onto or into someone’s property to search for evidence is a search under the Constitution, and as a result, police typically need a search warrant or consent for such a search to be valid. However, is it also a search if the police place a GPS device on a vehicle and monitor the vehicle’s movements? The police are not technically searching anything but are able to track where a person goes in the vehicle with the GPS device.

The United States Supreme Court recently addressed this issue in the context of a cocaine trafficking case. The police placed a GPS device on the defendant’s vehicle and monitored his movements for 28 days. The police did get a warrant to place the GPS device, but they did not comply with the terms of the warrant. Over the 28 days, the police were able to track the vehicle’s movements to within 50-100 feet. The GPS tracking device relayed more than 4,000 messages to the police about the vehicle’s location.

The criminal defense lawyer moved to suppress the evidence obtained from the GPS tracking device as a violation of the defendant’s Fourth Amendment rights. The government argued that a valid warrant was not necessary as a person does not have a reasonable expectation of privacy with regard to his/her movements on public roads.

Florida Governor Rick Scott Says Internet Cafes Should Be Illegal

Published on: February 6, 2012 | by Lasnetski Gihon Law

In the Jacksonville, Florida area, we have noticed more and more businesses, known as internet cafes, pop up around Jacksonville, Florida. While I have never actually visited one of the locations, I was curious as to exactly what kind of businesses they were, particularly because the one closest to the Law Office of Lasnetski Gihon Law has tinted windows and a security guard outside. Usually, tinted windows and security guards mean adult movies/accessories or gambling.

We noticed a recent article that reported Florida Governor Rick Scott said these internet cafes should be illegal. Apparently, Governor Scott recently spoke about them with reporters. He noted there are loopholes in the law which allow them to exist throughout Florida. He indicated more than 1,000 of the internet cafes have opened in Florida since 2006. The internet cafes offer electronic sweepstakes games that are legal under current Florida law.

In response to this issue, it appears the government wants to legislate how people spend their time and money and increase its authority. There are currently two proposed laws moving through the Florida legislature that would ban internet cafes in Florida. The proposed law that would ban internet cafes appears likely to pass in the House, although the Senate is taking a more job-friendly approach and looking to regulate the internet cafes and force them to pay a fee to operate.

Actual Physical Control of a Vehicle for DUI in Florida

Published on: February 3, 2012 | by Lasnetski Gihon Law

In Florida, in order to be charged with DUI, a person does not necessarily have to be driving the vehicle while impaired from alcohol or drugs. It is sufficient under the Florida DUI laws for a person to be in actual physical control of a vehicle. For instance, if the defendant was impaired while in the driver’s seat with the keys in the ignition, this is sufficient for actual physical control even if the vehicle was in park and not moving.

In another recent DUI case near Jacksonville, Florida, a police officer responded to a call of a possible impaired driver and saw the defendant exit his vehicle from the driver’s side door with the keys in his hands. After administering field sobriety tests to the driver, the police officer arrested him for DUI. The criminal defense lawyer moved to have the DUI case thrown out arguing that the defendant was neither operating the vehicle nor in actual physical control of the vehicle. However, the court disagreed and found that the evidence that the police officer observed the defendant exit the driver’s side door with the keys was enough to establish actual physical control of the vehicle under the Florida DUI laws.

Clearly, the courts in Florida may interpret “actual physical control” very broadly under the DUI laws. If you have been drinking and are impaired, the best thing to do is to avoid your vehicle altogether.

Can Police Search Your Office and Desk at Work?

Published on: January 31, 2012 | by Lasnetski Gihon Law

Most people in Florida understand that they have a strong privacy right in their homes. As a result, police are generally not allowed to come in and search a person’s home without a search warrant or consent. However, does this strong protection against unreasonable searches and seizures extend to the workplace in Florida?

In a recent case near Jacksonville, Florida the defendant was charged with kidnapping, armed sexual battery, robbery and other charges. After the incident, the victim identified the defendant in a photo lineup. As part of their investigation, the police went to the defendant’s place of work, which was a hotel where he was a manager and shared an office and a desk with another employee. Without the defendant’s knowledge, the police asked the defendant’s employer if they could search his office desk. The defendant’s manager gave the police consent to search his desk, and they found the victim’s cell phone in one of the drawers.

The defendant’s criminal defense attorney filed a motion to suppress the evidence of the victim’s cell phone claiming that the police did not have a right to search the defendant’s desk without a search warrant or consent from the defendant. He also claimed that the general manager did not have the right to give the police consent to search his desk.

Police Stops Vehicle After Leaving Florida Pain Clinic

Published on: January 27, 2012 | by Lasnetski Gihon Law

Over the last few years, we have seen how police in Florida have taken a much greater interest in so-called pain clinics, making a multitude of arrests of a wide range of people from the owners and doctors at the pain clinics to the people who use the prescription medication obtained at the pain clinics.

In a recent case south of Jacksonville, Florida, police were conducting surveillance in the parking lot of a pain clinic. They observed the defendant exit the pain clinic and enter a vehicle with two other people inside. The police officer followed the vehicle and watched as the three occupants apparently passed around a prescription pill bottle. Based on this observation, the police officer stopped the vehicle and arrested the defendant for doctor shopping after finding the pill bottle.

The criminal defense lawyer filed a motion to suppress evidence of the pill bottle alleging that the stop of the vehicle was invalid. The police officer testified that he had been investigating pain clinics for years and it is common for people to come from long distances to these pain clinics, buy prescription pills with cash without a proper medical exam and then share the pills with others in the parking lot.

Does Weight of Marijuana Include Water for a Trafficking in Marijuana Charge?

Published on: January 24, 2012 | by Lasnetski Gihon Law

In Florida, in order to be charged with trafficking in marijuana, which typically carries much higher penalties than possession of marijuana, the quantity of marijuana has to be greater than 25 pounds. In a recent trafficking in marijuana case south of Jacksonville, Florida, after the defendant was arrested, the police weighed the marijuana at 26 pounds, which is sufficient for a trafficking in marijuana charge. Approximately a year and a half later, the criminal defense lawyer for the defendant had the marijuana re-weighed. The weight at that time was 24 pounds, which was not sufficient for a trafficking in marijuana charge. Apparently the discrepancy was due to water seeping from the marijuana over time that pooled at the bottom of the container. The question, then is whether the weight of the water can be included in the weight of the marijuana for the purpose of a trafficking in marijuana charge.

The court determined that the weight of the marijuana does include moisture and the charge of trafficking in marijuana was appropriate. Under Florida law, marijuana, or cannabis, is basically defined as all parts of the marijuana plant including the seeds, the resin and any compound thereof. As a result, the court found that this includes any moisture naturally found in the plant for weighing purposes. It would not, however, include packaging materials, soil or excess water not inherent in the plant’s vegetable matter.

Since the court decided that the water that seeped out of the marijuana plant over time was a natural part of the plant, and not excess water, it was included in the weight of the marijuana and the trafficking in marijuana charge was upheld.