Jacksonville Criminal Lawyer Blog

Police Beginning to Crack Down on Unemployment Compensation Fraud Crimes

Published on: July 19, 2011 | by Lasnetski Gihon Law

We have discussed how the various law enforcement agencies seem to follow the issues of the day when making priorities out of certain crimes. While violent crimes are normally always priorities, when it comes to theft or white collar crimes, different crimes seem to grab the attention of the police at different times. When there is a huge story about securities fraud in the news, then those cases seem to pop up more often. When the housing bubble collapses and issues relating to mortgages make the news, mortgage fraud seems to be the most important crime to law enforcement officials. Today, high unemployment numbers are frequently discussed in the news. Predictably, we recently saw a story indicating the police have started cracking down on unemployment compensation fraud cases.

We have handled many unemployment compensation fraud cases in the Jacksonville, Florida area. Basically, in those cases the police allege that someone obtained unemployment compensation benefits when they were not entitled to them or for a time period longer than the entitlement. Often, the police claim that the suspect kept receiving unemployment benefits after returning to the workforce. Based on our experience, evidence supporting these criminal allegations is often shaky.

However, the reason the police are making these crimes a priority is obvious. According to the article, losses from unemployment compensation fraud across the country amounted to $1.7 billion in 2010, and approximately 30% of the improper unemployment fraud payments were made to people that had returned to work. Additionally, the unemployment rate figures to remain in the news as it is sure to be a major topic of discussion during the upcoming presidential campaigns.

Federal Prisoners Can Request a Reduced Sentences on Crack Cocaine Charges

Published on: July 16, 2011 | by Lasnetski Gihon Law

In the past, we have discussed the unequal treatment given to defendants who have been arrested for drug crimes where the primary difference was whether the illegal drug was crack cocaine or powder cocaine. Under the old federal criminal laws, people arrested and charged with crack cocaine crimes faced much stiffer penalties and prison sentences than those charged with similar powder cocaine charges. As an example, someone caught with 5 grams of crack cocaine could face a mandatory minimum prison sentence of five years while it would take 500 grams of powder cocaine to subject a defendant to the same mandatory minimum prison sentence.

Under the Fair Sentencing Act, Congress acted to bridge the gap between sentences for crack cocaine crimes and powder cocaine crimes. While the two crimes are still not considered equal for sentencing purposes, the large disparity between crack cocaine and powder cocaine crime sentences has diminished to some degree. The disparity was reduced from 100-1 to 18-1.

One question that remained when Congress decided to bring sentences for crack cocaine and powder cocaine crimes closer together was whether defendants convicted of crack cocaine crimes sentenced under the old, harsher laws could petition the courts for a modified, lesser sentence considering the new law. There are thousands of federal inmates who have been convicted of crack cocaine crimes that would have greatly benefited had Congress decided to fix this disparity sooner.

Internet Pharmacy Employees Arrested for Dispensing Drugs Without a Pharmacist

Published on: July 13, 2011 | by Lasnetski Gihon Law

In a recent criminal case south of Jacksonville, Florida, the police were investigating a location from which prescription drugs like Hydrocodone and Oxycodone were being dispensed pursuant to internet orders with the involvement of a pharmacist. Police observed a warehouse and saw some employees loading packages into vehicles that were taken to local shipping businesses. The police officers spoke to the employees and learned that the packages contained prescription drugs that were ordered by people over the internet. The employees were taking the orders and prescriptions over the internet and then filling the prescriptions and shipping them out to customers. According to the employees, there was a pharmacist employed by the internet pharmacy, but he was not present very often and did not review all of the prescriptions and drug deliveries.

In Florida, it is a felony crime to manufacture, sell or deliver any drug that is habit forming or potentially unsafe except with a prescription and under the supervision of a practitioner licensed to dispense the drug. There are two primary requirements for dispensing prescription drugs that can be dangerous and addictive like Hydrocodone, Oxycodone and Oxcyontin- there must be a valid prescription, and the drugs must be dispensed by a pharmacist who reviews the prescription for potential side effects, drug interactions and proper dosages and usage.

In this case, the customers ordering the drugs over the internet apparently had valid prescriptions. However, the defendants who were selling and dispensing the drugs were not doing so under the supervision of a licensed pharmacist who was properly reviewing the prescriptions as required by Florida law. There was a pharmacist associated with the internet pharmacy, but that pharmacist was not reviewing every prescription. Because this was not done, the employees responsible for dispensing the drugs were charged and convicted of felony drug crimes.

In Florida, Police on School Grounds Have Much Greater Authority to Search Students

Published on: July 10, 2011 | by Lasnetski Gihon Law

Normally in Florida, the police cannot search a person or his/her vehicle, home or other belongings without probable cause and a search warrant or consent to search. Students in school do not enjoy those same protections from searches and seizures by police or school officials.

In a recent gun case in Jacksonville, Florida, a school received an anonymous tip that a student at the school had carried a gun on school grounds three months earlier. When school officials learned of the anonymous tip, the school resource officer and security guard took the student to the security office where he was searched. A gun was found on the student. The student was charged with carrying a gun on school grounds.

Outside of the school context, this search would never be legal. First, an anonymous tip that is not corroborated by specific observations is not sufficient to search someone without permission. Additionally, a tip that someone was carrying a gun three months earlier would be considered stale and, even if reliable, would not be sufficient probable cause to search someone three months after the alleged criminal conduct occurred.

An Example of Insufficient Evidence to Prove Constructive Possession of Marijuana in Florida

Published on: July 7, 2011 | by Lasnetski Gihon Law

In Florida, the state can prove possession in one of two ways. The most obvious involves actual possession. For instance, marijuana found in a person’s hand or pocket would constitute actual possession of marijuana. However, even when a person is not in actual possession of drugs, the state can still prove possession of the drugs under certain circumstances. This other situation involves constructive possession of drugs. For instance, if the police search a person’s house and find a bag of cocaine on that person’s dresser right next to his bed, along with other items belonging to him in room belonging to him where he is the only occupant of the room at the time, that may be sufficient to prove a case of constructive possession of cocaine.

In order to prove constructive possession of drugs, the state needs to prove that the suspect knew the drugs were present and had some sort control over the drugs. For instance, if you go to a party with hundreds of people, you are standing in the kitchen by yourself next to the closed refrigerator and the police come and find a bag of marijuana in that refrigerator, they cannot convict you of possession of marijuana without proof that you knew the marijuana was in the refrigerator and you had some sort of control over it, i.e. you put it there or used some of it. You may have been the closest to the marijuana, but that is just one potentially relevant factor. Without evidence that you knew the marijuana was present and had some significant connection to it, that marijuana cannot be attributed to you in a criminal case.

In a recent criminal case near Jacksonville, Florida, the police pulled a car over for speeding. The police obtained consent to search the car and found a suitcase containing marijuana in the trunk of the vehicle. The police then arrested the driver for trafficking in cannabis/marijuana. There was also a passenger in the vehicle who had the keys to the vehicle prior to the driver.

Police Trespass on Property to Investigate Marijuana Growing Case

Published on: July 4, 2011 | by Lasnetski Gihon Law

In a recent case south of Jacksonville, Florida, the police went well beyond what is permissible under Constitutional search and seizure law and trespassed upon a person’s property in order to investigate a complaint relating to growing marijuana. In this case, the police received an anonymous tip that the suspect was growing marijuana at his house. When the police arrived at the house to investigate, they saw that the house was completely surrounded by a tall fence and some bushes. As a result, the police were unable to see the house from public property. Therefore, the police could not observe any criminal activity that would corroborate their anonymous tip or even the house itself.

Generally, the police are not allowed to search a person’s home or go through a private gate onto a person’s property without a valid search warrant or consent to search the premises. In this case, the anonymous tip without any corroborating evidence was not sufficient to allow the police to get a search warrant. Not to be deterred however, when the suspect opened the gate to leave his property, the police officers slipped inside the gate and blocked the suspect from leaving. The police asked the suspect to sign a consent to search form, and, knowing he had a lot of marijuana plants inside his house, he refused. After some period of time, the suspect did open his door and allow the police inside. Once inside, the police found over 100 marijuana plants and arrested the suspect for cultivation of marijuana.

This was clearly an illegal search. The anonymous tip that was not corroborated by specific observations of the police officers was not enough for the police to obtain a warrant. If the police do not have a search warrant, they are not permitted to go onto a person’s private property through a gate clearly meant to keep people out and maintain the homeowner’s privacy. That is a trespass. If the police trespass to get on the person’s property, the property owner’s subsequent consent for the police to search is tainted and likely will not hold up in court.

Florida Drug Case Thrown Out After Police Enter Backyard Without a Search Warrant

Published on: July 1, 2011 | by Lasnetski Gihon Law

In Florida, the Constitutional protection against illegal searches and seizures by police is strongest when it involves a person’s privacy interest in his/her residence. Normally, a police officer cannot search a person’s house, apartment or other residence without a valid search warrant or consent to search by a person authorized to give consent to search the home. This protection against illegal searches and seizures also extends to a person’s backyard.

In a recent marijuana case south of Jacksonville, Florida, the police received an anonymous tip that three individuals were outside of a particular house standing next to a white SUV with cocaine and guns. The police arrive and saw the SUV and some people in front of the house, but they did not see anyone matching the description in the anonymous tip nor did they see any drugs or guns.

One of the police officers said he heard voices coming from behind the house. The police officers proceeded to walk through the gate and into the backyard to see if anyone there was armed. While in the backyard, the police officers saw marijuana in the house through a window and arrested the defendant who was also in the house with the marijuana.

In Florida, Police Officer Needs Reasonable Cause to Believe DUI Suspect Used Drugs to Take Urine Sample

Published on: June 28, 2011 | by Lasnetski Gihon Law

In most DUI cases, when a police officer claims to observe signs of impairment of a driver, the police officer will request the suspect to take a breathalyzer test to determine if the driver is driving under the influence of alcohol (i.e. DUI). Florida law allows a police officer to request that a driver take a breathalyzer test if the police officer makes a valid arrest for DUI based on his/her observations that the driver is driving while impaired. The driver can refuse to submit to the breathalyzer. If the driver refuses to take the breathalyzer test, the state can use the breathalyzer refusal against the driver at the DUI trial.

If the driver submits to the breathalyzer and the police officer is not satisfied with the breathalyzer results, the police officer cannot then request a urine or blood test without specific evidence that the driver is impaired by drugs rather than alcohol. A breathalyzer is supposed to test the person’s blood alcohol content. The breathalyzer cannot determine if a driver has used drugs. A urine or blood test can test for the presence of alcohol and/or drugs in a person’s system. However, if the police officer requests the breathalyzer test, the officer cannot then request the urine or blood test to look for drugs just because he/she did not like the breathalyzer results.

In a recent DUI case south of Jacksonville, Florida, the police officer saw the suspect stopped at a traffic light. The light turned green and red and then green again, but the suspect never drove forward. The police officer approached the vehicle and saw the driver laying down in the driver’s seat. The officer said he observed signs of impairment and conducted field sobriety tests. The officer said the suspect failed the field sobriety tests and arrested the suspect for DUI. At the police department, the suspect submitted to two breathalyzer tests. Both breathalyzer tests yielded results under the legal limit of 0.08. At that point, the police officer claimed that he thought the suspect might be under the influence of drugs and requested the suspect submit to a urine test. The suspect refused. The state ultimately tried to use the suspect’s refusal of the urine test against the suspect at his DUI trial.

When Police in Florida Have a Search Warrant for Your House, What Else Can They Search?

Published on: June 25, 2011 | by Lasnetski Gihon Law

In Florida, in order for the police to have a right to search a person’s house, they normally will need a valid search warrant signed by a judge. Police typically obtain a search warrant for a person’s house after conducting surveillance and observing drug related activity at the house or having a confidential informant go to the house to make drug buys. Once the police obtain the search warrant for the house, are they limited to searching inside the house in areas where illegal drugs can be stored or can they search other areas outside, but near, the house?

Many search warrants for someone’s house will also include what is called the curtilage of the house. The obvious questions becomes: What is within the curtilage of the home to be searched? Curtilage is not specifically defined in Florida law, and it depends on the nature of the property. However, the general definition of curtilage is the area around the home that is intimately tied to the home. The factors a criminal court would look at to determine if something is within the curtilage of the home are: how close the area searched was to the house, whether the area searched was enclosed near the home, how that particular area is used at the home and what steps, if any, the homeowner took to protect the privacy of the area.

Therefore, one can assume this includes the driveway of the home and a fenced-in backyard. If there is no fence at the house, the curtilage still likely includes the immediate area around the house.

Criminal Defense Lawyers Are Required to Tell Client of Deportation Risk Before Entering Guilty Plea

Published on: June 22, 2011 | by Lasnetski Gihon Law

If you have been charged with a crime in Florida, or any other state, and you are not a United States citizen, you may be at risk of suffering immigration related penalties, such as deportation, as well as the normal criminal penalties. If your criminal defense lawyer is not familiar with immigration law, he/she may not know to advise you of the immigration ramifications of your criminal case or may not be sufficiently familiar with the immigration laws to properly advise you of what the immigration risks are of a guilty or no contest plea or a guilty verdict at a trial in the criminal case.

At Lasnetski Gihon Law, we handle immigration cases as well as criminal cases so, unlike most other criminal lawyers in the Jacksonville, Florida area, we are qualified to fully advise you if you are not a United States citizen and are facing criminal charges.,

In 2010, the United States Supreme Court decided the case of Padilla v. Kentucky. The Padilla case held that criminal defense lawyers are required to advise criminal clients who are not U.S. citizens that a guilty or no contest plea may have negative immigration consequences. Of course, many criminal defense lawyers are not qualified to provide specifics as to how the immigration process works and what those negative immigration consequences are likely to be. Therefore, it is very important to contact a law firm that is experienced in both criminal law and immigration laws, as we are.