Jacksonville Criminal Lawyer Blog

Police Need Probable Cause for Drug Dog Sniff Test of a Residence

Published on: May 20, 2011 | by Lasnetski Gihon Law

The Florida Supreme Court recently decided a marijuana case that discussed the search and seizure issues involved with the police walking a drug dog around the outside of a person’s home to smell for marijuana or other drugs. The police and the state argued that walking a drug dog around the front of a person’s home without going inside is not considered a search pursuant to search and seizure constitutional law because there was no intrusion into the person’s home. They also argued that if it was considered a search, the police needed something less than probable cause to believe drugs were inside the home to validate the search. The defendant, who was charged with growing marijuana plants in his home, argued that it should be considered a search when police officers and a drug dog come onto his private property with the intention of smelling for illegal drugs.

In this case, police officers received an anonymous tip that the defendant was growing marijuana in his home. The police did not do anything to verify the accuracy of this tip with corroborating facts or observations. Instead, the police walked onto the property with a drug dog and conducted a sniff test right outside of the front door. The drug dog alerted to drugs inside, and the police officer indicated he smelled marijuana as well. Based on this information, the police obtained a search warrant for the home. Inside, they found marijuana plants and marijuana growing equipment. The defendant was arrested for cultivating marijuana.

The criminal defense lawyer for the defendant moved to suppress the evidence of the marijuana plants and growing equipment arguing that the defendant’s constitutional right to be free from unreasonable searches and seizures was violated when the police and the drug dog walked onto his property to smell the area near his front door without probable cause.

Florida Governor and Attorney General to Target Doctors and Drug Companies

Published on: May 17, 2011 | by Lasnetski Gihon Law

New Florida Governor Rick Scott and Attorney General Pam Bondi have indicated they plan to target doctors and pharmaceutical manufacturers who, according to them, distribute pain pills such as Oxycodone and Oxycontin to drug abusers and drug dealers. The recently announced the formation of a new strike force for that purpose and applied $800,000 in unused federal grant money to fund the new strike force. The believe Florida is the a haven for pill mills or pain clinics which disburse these pain pills that are ultimately abused by drug users or re-sold on the street. They state that more Oxycodone has been distributed in Florida than all other states combined, and many of those pills are distributed to people who move them to other states.

According to newly elected Attorney General Bondi, the pill mill issue “is the mission of [her] life right now.”

We have seen the effects of this emphasis on pill mills or pain clinics. Many pain clinics have been shut down in Florida and many people from the employees to the doctors to the owners have been arrested on state and federal charges. Pain clinics are under tremendous scrutiny right now, and many people who assume they have done nothing wrong are being investigated and arrested. If you have any questions about owning, operating or working with a pain clinic in some capacity, feel free to contact us for a free consultation.

Is it Burglary to Steal Items From a Person’s Yard in Florida?

Published on: May 14, 2011 | by Lasnetski Gihon Law

In Florida, burglary is a very serious crime that can result in a significant prison sentence. Ordinarily, burglarizing a person’s home or dwelling is considered more serious than burglarizing a vehicle or a business. Most people understand burglary to include a situation where a person breaks into another’s home with the intent to steal something or commit another crime inside. Is it also a burglary of a dwelling to steal something from another’s yard?

In Florida, burglary of a dwelling is not limited to the victim’s actual residential structure. It also includes the curtilage of the residence. What does curtilage mean? That term is not specifically defined in the Florida criminal statutes. However, prior criminal cases in Florida have indicated that the curtilage includes some form of enclosed area near the residence. Most likely, an enclosed shed or outhouse of some sort in the yard near the house would be included in the curtilage. However, the same structure on the property but far away from the house may not be within the curtilage of the home. The backyard of a residence would likely be within the curtilage of the home if it was enclosed by a fence. However, if a person walked onto another’s property and stole some items laying in the yard which was not fully enclosed by a fence, that would not be burglary of a dwelling.

Whether a crime involving property outside of one’s home is a burglary to a dwelling depends on the circumstances of the property and the theft. However, generally, if the suspect breaches any sort of enclosure on or near the residence with the intent to commit a theft or other crime, it is likely to be a burglary of a dwelling.

Is it Illegal for a Student to Have a Pocket Knife on School Property?

Published on: May 11, 2011 | by Lasnetski Gihon Law

In Florida, the laws regarding weapons, violence and threats of violence at school have become much more strict over the last several years. Every now and then, there will be a news story of a child getting arrested or suspended for seemingly harmless conduct. In a recent criminal case south of Jacksonville, Florida, a child was arrested after the school principal found a pocket knife with a 3 3/4 inch blade in his pocket. Under Florida law, it is illegal for a student to possess a firearm or any other kind of weapon at school, on the school bus or at any school-sponsored event. A violation of this statute is a felony. The ramifications of a student getting a felony conviction, or adjudication, at a young age for such a violation are obvious.

The question, of course, is: what is considered a weapon? The criminal statute clearly indicates that box cutters and razor blades are not allowed unless otherwise permitted by the school. However, what about pocket knives, which are fairly common possessions of young kids? Florida law does define the term “weapon” by giving some examples of weapons and also says that any knife is a weapon except common pocket knives, blunt table knives and plastic knives. For some reason, in the case cited above, the principal, the police, the state attorney’s office and even the judge all thought the child’s possession of a 3 3/4 inch pocket knife was serious enough to convict the kid of a felony charge (a conviction is actually referred to as an adjudication when juveniles are involved). Fortunately, the appellate court read the statute and reversed the child’s conviction by finding that the 3 3/4 inch pocket knife was a common pocket knife which is not considered a “weapon” under the Florida criminal statute, and the case was dismissed.

Of course, a school has a right to ban such items from school grounds, however possessing a common pocket knife cannot be the basis of a felony crime in Florida.

The Crime of Kidnapping Does Not Require Significant Restraint of Movement

Published on: May 8, 2011 | by Lasnetski Gihon Law

Kidnapping is a very serious crime in Florida. Kidnapping can be committed in several different ways, but the most common method of kidnapping may be defined as forcibly imprisoning a person against his/her will with the intent to harm the person or commit a felony. In Florida, kidnapping is a first degree felony punishable by up to 30 years in prison, or even life in prison if the victim is under 13 years of age and is abused or injured during the crime. From movies and television, many people may think that kidnapping requires some prolonged confinement of a person against his/her will. However, kidnapping only requires fairly minimal confinement or imprisonment to complete the crime.

In a recent criminal case near Jacksonville, FL, the defendant became angry with the victim, hit her with a chair, dragged her by her hair into the next room, beat her until she was unconscious and dragged her outside and continued to beat her. The entire incident lasted approximately seven minutes. The defendant was charged with and convicted of kidnapping and attempted second degree murder. The criminal defense lawyer for the defendant tried to have his conviction for kidnapping reversed based on the fact that the movement of the victim was not independently significant to the attempted murder charge and was only slight and incidental to that charge. However, the appellate court disagreed and found that these facts were sufficient to establish a kidnapping conviction.

Kidnapping is a very serious charge with significant penalties in Florida. In order to be convicted of kidnapping, the state does not have to prove the defendant confined the victim for a long period of time. If the confinement or movement of the victim is truly slight and incidental to another crime, the evidence may not be sufficient to support a kidnapping conviction. However, even a few minutes of holding a person down or moving the victim to another area against his/her will can be enough for a kidnapping conviction and a long prison sentence.

A Good Article on Riding Bicycles in Florida

Published on: May 5, 2011 | by Lasnetski Gihon Law

With oil speculators wreaking havoc with the oil markets and gas prices continuously increasing once again, we thought it might be helpful to post this article addressing rules for riding your bicycle in Florida. Yahoo! Sports cited Lasnetski Gihon Law in the article so we will return the favor and post their article on our blog.

Defendant Cannot Challenge Illegal Search of Stolen Vehicle

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

Normally, a person in Florida has a privacy right attached to the vehicle he/she is driving and as a result, a police officer is not allowed to search that vehicle for illegal drugs or other evidence without permission, a search warrant or probable cause to believe there is evidence of a crime in the vehicle. The driver does not have to be the owner of the vehicle to maintain this privacy protection. If the driver has borrowed the vehicle or is just renting the vehicle, that driver still has a privacy right to that vehicle and its contents that protects him/her from unreasonable searches and seizures by police. However, a person does not maintain the same privacy protection in a stolen vehicle.

In a recent criminal case just south of Jacksonville, Florida, the police stopped a vehicle due to a traffic violation and then arrested the driver because he did not have a valid driver’s license. After arresting the driver and placing him handcuffed in the patrol car, the police officer searched the vehicle and found illegal pills and drugs inside. The driver was then charged with possession of a controlled substance. The police later learned the vehicle had been reported stolen.

Normally, this would not be a legal search. A police officer is not allowed to search someone’s vehicle under those circumstances unless the police officer has permission, a search warrant or a reasonable belief based on specific facts that there is evidence of drugs or other criminal activity in the vehicle. The police officer in this case apparently did not have any legal basis to search the vehicle and seize the drugs. However, the driver was not allowed to challenge the search because he did not have a privacy right in the stolen vehicle. In legal terminology, the defendant did not have standing to challenge the search. Standing is a threshold matter that needs to be established before a person can challenge an illegal search and seizure. If standing does not exist, the defendant will not be able to prevail on a motion to suppress evidence even if the search and the seizure were illegal.

Kentucky Passes New Drug Law to Reduce Prison Population and Save Money

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

The governor of Kentucky recently signed a new law that was designed to save money, decrease the number of prison inmates and reduce crime by reducing prison time for non-violent offenders who possess illegal drugs. The money saved from the lower prison inmate population is diverted to drug rehabilitation programs for those who need them. According to the governor, the new law is expected to save $422 million over the next ten years (although it is unclear where that number comes from).

Other states facing severe budget deficits have also discussed ways in which they can save money by reviewing the criminal justice and prison systems. Florida may follow suit after Governor Scott promised to take bold steps to save money in a variety of ways. Florida has the third largest prison population with approximately 100,000 prisoners in the state system. That prison population has grown over the past five years despite a declining crime rate. Florida also has a $2.4 billion dollar budget to deal with its prisoner population.

Florida currently has a significant gap in its budget. Governor Scott has promised to cut $1 billion from the corrections budget over the next seven years. It seems likely that Governor Scott will try to implement similar reforms to those in Kentucky that focus on fewer prisoners due to simple drug possession charges with an emphasis on attempting to treat non-violent drug offenders so they do not continue to re-offend and go back to prison at a significant and unnecessary cost to the state.

Eleven People Arrested on Mortgage Fraud Charges in North Florida

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

Police arrested eleven people alleging they were involved in mortgage fraud in various counties in North and Central Florida, including Flagler and Volusia Counties. The police are alleging that the individuals devised a scheme that involved straw buyers, realtors, appraisers and mortgage brokers. The group is alleged to have artificially inflated prices of homes with false appraisals and increased the amount of the loan by requesting additional funds for renovations that were never intended or executed. The excess money would be paid to the straw buyers and split among the people involved in the scheme. According to police, the buyers in these schemes never intend to live in or renovate the houses and the property is normally foreclosed upon not long after the closing. This particular mortgage fraud scheme reportedly involved 23 homes and $9 million.

Mortgage fraud cases have increased dramatically over the last few years after the housing crisis hit. During the housing bubble, banks were loaning large sums of money to anyone and everyone who filled out a mortgage application. Once housing values quit going up, banks realized they had a lot of bad loans on their books, and the mortgage crisis began to snowball. This is the exact kind of environment that prompts the government to go into reactive mode and initiate investigations into possible mortgage fraud. When everyone was making money (the banks were closing loans and the builders were selling houses), everyone was was happy, and mortgage fraud did not seem to be a problem. When everyone started losing money (loans were not getting paid and foreclosures skyrocketed), no one was happy, and the mortgage fraud investigations began in force. In the current environment, the various law enforcement agencies are focusing on any sort of irregularities in the mortgage loan process.

Prior False Accusation in Sexual Battery Case May Not Be Admissible at Trial

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

In Florida, in a lewd or lascivious molestation or battery case, or a sexual battery case, the credibility of the victim’s testimony is often the most critical factor in the case. In many of these cases, the victims are children who may be less predictable in the things they say and may not appreciate the importance of telling the complete truth in a legal proceeding. In any case, but particularly in lewd or lascivious molestation or battery cases, the criminal defense lawyer’s job is to question the victim to determine the accuracy of the victim’s statement incriminating the defendant.

However, the criminal defense lawyer does not have free reign to ask the victim any questions and bring out bad things the victim may have done in the past. One area that would seem to be critical to determine the credibility of the victim would be prior, similar false accusations. For instance, if the victim is saying the defendant in the present case sexually assaulted her, should the criminal defense attorney have the right to inform the jury that the victim made a similar accusation of sexual assault against the defendant’s brother two years earlier that proved to be false? It would seem like this would be important information for a jury to know about the victim. However, a recent Florida Supreme Court case said that such information would likely be inadmissible at a trial. The general rule is that the criminal defense lawyer may not bring out evidence about the victim’s prior bad acts, including similar but false accusations about another person.

The criminal defense lawyer can attack the credibility of the victim, but he/she is limited in his/her methods. The criminal defense attorney can bring out the fact that the victim has a prior conviction(s) for a felony or a misdemeanor crime that involved dishonesty. For instance, if a person made a similar, false accusation of a sexual assault about someone else and was arrested and convicted for false report of a crime, the criminal defense lawyer would be able to inform the jury that the victim has a prior conviction. However, that is rare when dealing with young victims. The criminal defense lawyer also has the right to bring out any facts that tend to show the victim’s testimony is biased or the victim has a motive to be untruthful. Therefore, if the victim has multiple false accusations against other people or one prior, false accusation against this defendant, that evidence should be admissible at the trial to show the victim is biased towards the defendant or has a motive for lying in this context.