Jacksonville Criminal Lawyer Blog

Police Use Electric Company to Bust Marijuana Grow House

Published on: February 23, 2011 | by Lasnetski Gihon Law

In a recent case outside of Jacksonville, Florida, the police began investigating a suspect after they saw his vehicle outside of a hydroponic retail store. The police tracked the suspect’s license plate to his house where they saw the vehicle parked. The house windows were covered with blinds, and there was a large fence surrounding the back yard so the police could not determine what was in happening inside the house or in the back yard. Based upon the suspected hydroponic equipment inside the house, the police suspected the house was being used to grow marijuana. One of the first things the police will do upon such a suspicion is check the electricity consumption at the house. Marijuana grow houses typically require much more electricity than other houses. When police see an electric bill at one house that is routinely much higher than the neighboring houses, that is an indication that it is being used as a marijuana grow house.

In this case, the electricity consumption was normal. However, the police still suspected the occupants of the house were cultivating marijuana. The police assumed the occupants were stealing electricity so the total electricity consumption of the house was not reflected on the electric bill. The police contacted an investigator at the electric company to inspect the house for possible electricity theft. The electric company investigator went to the house, broke the lock on the fence and went into the back yard. In the back yard, he discovered that the occupants were running unmetered electricity into the house. The electric company told the police about the electricity theft, and the police asked the occupants for consent to search the house. The occupants of the house refused to consent to a search of the house, but the police were able to obtian a search warrant. They searched the house and found the marijuana cultivation equipment inside. The occupants were charged with trafficking in marijuana, cultivation of marijuana, possession of drug paraphernalia and electric utility theft.

There are many issues that arise in a case like this. First, under the Fourth and Fourteenth Amendments to the Constitution, in order for the police to enter one’s home, or even one’s back yard, the police must either have consent or a search warrant. In this case, it was the electric company investigator who went into the back yard without a warrant or consent. However, those Constitutional protections do not apply to private entities, like the private electric company. The criminal defense lawyer cannot file a motion to suppress evidence found by a private person. An exception to this rule would apply if the police directed the private person to enter one’s home or back yard without a warrant or consent. For instance, if the police asked the electric company investigator to go into the back yard and look for a marijuana grow house, that would be an illegal search. In this case, the court found that the electric company conducted the inspection on its own. Once the electric company investigator learned of the electricity theft and told the police, the court determined that the police had sufficient evidence to obtain the search warrant to find the marijuana cultivation equipment.

Judge in Florida Cannot Deny Sealing or Expunction Based on Nature of Charge

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

In Florida, when a person gets arrested for a crime, he/she may have an opportunity to clear up his/her record depending on how the criminal case proceeds. If the charges are ultimately dismissed, the person is eligible to have that criminal record expunged. If the person enters a plea of guilty or no contest and the judge ultimately withholds adjudication, the person is eligible to have the criminal record sealed depending on the nature of the charge. The Florida legislature has determined which crimes are eligible for sealing. Assuming a person is eligible for a sealing or expunction, there is a process that must be undertaken to have the criminal record sealed or expunged. It involves getting a Certificate of Eligibility from the Florida Department of Law Enforcement (FDLE) and filing a motion to expunge or seal the criminal record with the judge assigned to the case. Once the judge orders the criminal record to be sealed or expunged, the clerk’s office sends the order to the appropriate law enforcement agencies, and the criminal record is sealed or expunged at that time.

As indicated, a judge has to agree to sign the order sealing or expunging the criminal record. Once the criminal defense lawyer files the motion to seal or expunge the criminal record, the prosecutor has a right to object to the motion or agree to it. Either way, it is ultimately up to the judge. However, the judge may not deny the motion to seal or expunge the criminal record based solely on the nature of the charge. The judge can look into the underlying facts of the case and deny the motion based on those facts, but the charge alone is not a proper basis to deny the motion to seal or expunge the record. The Florida legislature has determined which crimes can or cannot be sealed. As a result, the judge may not override that decision by denying someone’s attempt to seal or expunge his/her record based on the charge when the Florida legislature has already established that the charge is eligible to be sealed or expunged.

A criminal record can be a very significant obstacle when trying to get a job, especially when the job market is tight. Even if you were arrested and the charges were dropped, the arrest and the charge will still show up on your record if you do not take action to clean up your record. If you have any questions about sealing or expunging a criminal record, feel free to contact us for a free consultation.

Is Marijuana Evidence Admissible in a DUI Case Involving Alcohol?

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

As criminal defense attorneys in the Jacksonville, Florida area, we see a lot of different DUI cases. One issue that arises from time to time is a situation where the police arrest a person alleging that he/she is driving under the influence of alcohol but there is also evidence of a drug on the person or in the vehicle. For instance, in a recent case, a suspect was stopped for DUI based on alleged alcohol impairment. When the suspect was arrested, the police found a marijuana pipe and other marijuana paraphernalia in the vehicle as well. At the DUI trial, the criminal defense lawyer tried to exclude the evidence of the marijuana paraphernalia arguing that it was irrelevant and prejudicial in a case that was about alleged alcohol impairment.

In other cases, we have seen where the suspect has the actual drug, whether it be marijuana, cocaine, Oxycontin or something else, on his person. While possession of one of those drugs would result in an additional charge, we would argue that that drug charge should be handled separately from the DUI case because evidence of the drugs would be prejudicial and irrelevant to whether the suspect was impaired by alcohol at the time of the DUI arrest.

In Florida DUI cases, the law appears to allow evidence of the drugs or drug paraphernalia in certain circumstances: 1) there is significant evidence that the suspect was impaired, 2) the suspect has evidence indicating he/she recently used the drug(s), 3) there is a lack of evidence indicating the suspect is impaired from any other source and 4) the evidence does not indicate the suspect was not impaired from the drug for which the evidence exists.

Police Cannot Always Search Vehicle in Florida After Suspect is Arrested and Secured

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

The law regarding searches and seizures recently changed removing a fairly common justification for police to search a person’s vehicle after he/she has been arrested. Prior to the change in the law, police officers could search a person’s vehicle after arresting him/her for a crime in or near the vehicle. After the arrest, the police were permitted to search the vehicle compartment for illegal drugs, guns or any other evidence. However, the law changed and now prohibits police officers from automatically searching a person’s vehicle after an arrest in each case.

Under the new law, police are still allowed to search a vehicle after an occupant has been arrested but only in more limited circumstances. Now, after an occupant has been arrested, the police can only search the vehicle if the occupant is unsecured and within arm’s reach of the inside of the vehicle or if the police officer has a specific reason to believe there is evidence of a crime in the vehicle. This change in the law should significantly limit searches of vehicles after an occupant’s arrest when in the past it was basically automatically allowed. When the police officer arrests an occupant, the officer is going to handcuff that person and put him/her in the police car. It is rare for a person to be unsecured and near his/her vehicle after the arrest. This would eliminate the first basis for searching the vehicle in most cases. Of course, the second basis still may exist- that the police officer has a reason to believe there is evidence of a crime in the vehicle, but the police officer must have a specific reason for the search. The police officer cannot rely upon the belief that there must be evidence of drugs or other criminal activity in the vehicle just because they arrested an occupant of the vehicle fro a drug-related or other crime.

If the police in Florida do search a vehicle after they have arrested and secured an occupant without a specific basis for the search, the criminal defense lawyer can file a motion to suppress any evidence found as a result of the illegal search.

Police Officer’s Racial Comment Admissible at Trial

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

To what extent is a police officer’s racial comment admissible in a criminal trial? It depends on the circumstances and type of case. However, in any trial, evidence that tends to prove that a witness is biased against one side or the other should be admissible at the trial. If a police officer makes a comment during the arrest that indicates he/she may be biased against the defendant based on his/her race, that comment should be included in the evidence that is evaluated by the jury. The same is true if the comment was made by a lay witness.

In a recent domestic battery case that occurred south of Jacksonville, Florida, the defendant was African-American and the victim was white. The police officer who arrested the defendant for domestic battery made an apparently racist comment explaining why he had to arrest the defendant. The court ultimately ruled that the criminal defense lawyer could bring the comment to the jury’s attention because prejudicial comments are relevant to attack the credibility, and show the possible bias, of the police officer.

Domestic battery cases are often based solely on the testimony of the victim. In many domestic violence cases, the only two people present for the incident are the defendant and the alleged victim so there are no independent witnesses to confirm either side’s story. As a result, the police officer who responds to the domestic battery call has to decide which party is telling the truth. Even if there is some evidence of an injury on the alleged victim, that does not prove that a domestic battery was committed if the alleged victim started the altercation and the other party was defending him/herself. Because the police officer uses more discretion than normal in most domestic battery arrests, any bias the police officer may have against the defendant should be admissible in the trial.

Police Officer Cannot Stop and Search Suspect on a Hunch in Florida

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

Each person in Florida has a Constitutionally protected right to be free of unreasonable searches and seizures. If a police officer has probable cause to believe a person is committing a crime, the police officer may be able to stop a person and conduct a search. However, when the officer assumes a person is committing a crime or is going on a hunch or suspicion, any stop and search of the suspect will likely be illegal and result in the evidence recovered being thrown out of court.

In a recent case near Jacksonville, Florida, a police officer was driving through an area that had experienced many recent burglaries and other criminal activity. However, he was not actually responding to a burglary call or a call of any specific criminal activity. While driving through the area, he saw the defendant standing next to a car in the parking lot of a closed business late at night. When the defendant saw the police officer, he entered the vehicle and drove off quickly. The police officer then stopped the defendant. A K-9 walked around the car and alerted to the odor of illegal drugs. The police officer searched the defendant’s car and found marijuana and a handgun inside. The defendant was arrested for possession of marijuana and carrying a concealed firearm without a permit.

The criminal defense lawyer filed a motion to suppress the evidence of the marijuana and the firearm. The court agreed, and the marijuana and gun charges were thrown out. Because the police officer did not observe the defendant engaging in any criminal activity, he was not authorized to stop him and search his vehicle.

Police Can Obtain Evidence of Alcohol/Drug Use Without Probable Cause With Consent

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

In a recent DUI case near Jacksonville, Florida, the police obtained evidence that a driver was intoxicated while driving after an accident. When the police officer arrived at the scene of the accident, the defendant was not hurt and did not appear to be intoxicated by drugs or alcohol. As a result, the police did not have probable cause to arrest the driver for DUI. However, the police officer did ask the driver if he would submit to a blood test that would test his blood for alcohol and drugs. The driver agreed, and the blood alcohol test came back positive.

The criminal defense lawyer filed a motion to suppress the results of the blood alcohol test because the police officer did not comply with the Florida implied consent law. The Florida implied consent law says that when a person agrees to accept the privilege of driving in Florida, he/she also agrees to submit to a test of his/her blood or breath when lawfully arrested for DUI. However, as part of the implied consent law, the police officer is obligated to inform the suspect that the suspect is only required to submit to a breathe or urine test, not a blood test. The police officer in this case did not inform the suspect that the blood test was not required. However, the court denied the criminal defense lawyer’s motion to suppress the evidence of the blood test. The court stated that this was not a case where the implied consent law was implicated because there was no evidence the driver was intoxicated and he was not under arrest at the time. This was simply a case where the police officer asked the driver to voluntarily submit to a blood alcohol test and the driver agreed.

The driver in this case should have been aware that he could have refused the police officer’s request for the blood alcohol test. If he had refused and the police officer arrested him and/or had him take the blood alcohol test anyway, the results would likely have been thrown out of court because the the police officer did not have sufficient evidence to believe that the driver was impaired by drugs or alcohol.

Jacksonville Hospice Worker Arrested for Stealing Pills and Other Drugs

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

A woman working at a hospice in Jacksonville, Florida was recently arrested by Jacksonville police for allegedly stealing prescription pills and morphine from her employer, according to an article on News4Jax.com. The woman is charged with drug trafficking and illegal drug possession. The woman was an LPN (licensed practical nurse) for Community Hospice in Jacksonville and has been accused of stealing Xanax, Oxycontin and Morphine from patients who died at the facility over a period of several months.

Police and prosecutors have been focusing their attention much more on drug crimes involving pills such as Oxycontin, Oxycodone, Hydrocodone and Xanax over the last couple of years as opposed to the more traditional drug possession and trafficking crimes involving marijuana, cocaine and crack cocaine. The possession, distribution and trafficking of narcotic pills has become much more prevalent over the last several years. The Florida legislature has responded by making the penalty for possessing, trafficking and/or distributing pills without the proper prescription very serious. While it takes a very large amount of marijuana and a significant amount of cocaine to reach the level of drug trafficking (a crime that comes with mandatory minimum prison sentences and very high maximum potential prison sentences), it does not take very many narcotic pills to be charged with trafficking. The number of pills that would commonly be provided in a prescription would often be a sufficient amount for a trafficking charge.

As criminal defense lawyers in the Jacksonville, Florida area, we represent many people who are charged with possession, distribution and/or trafficking of pills, from people addicted to painkillers to doctors and others involved with the operation of pain clinics. Many of them are surprised at how harsh the drug laws are regarding pills and how few of these drugs, relative to other drugs, are necessary to trigger potentially very serious penalties.

Some Florida Counties Getting Search Warrants for Driver’s Blood in DUI Cases

Published on: January 29, 2011 | by Lasnetski Gihon Law

In DUI cases in Florida, the police officer who suspects the driver of driving while intoxicated will normally request that the driver submit to a breath alcohol test, or breathalyzer, which is the common test to determine if a person is driving over the legal limit. Blood and urine tests also exist, but police typically request the breath test due to the fact that it is easier to administer. In Florida, when a person gets a driver’s license and accepts the privilege to drive, he/she agrees to submit to an alcohol test after a lawful arrest for DUI where the police officer had probable cause to make the DUI arrest. Normally, the driver can refuse the breath, blood or urine test- the police officer will not force the the driver to submit to the breathalyzer, blood or urine test. However, if the driver refuses to submit to the breath, blood or urine test after a lawful arrest for DUI, the person is subject to a longer driver’s license suspension and being charged with a misdemeanor crime for a subsequent DUI test refusal. The refusal can also be used against the driver in court during the DUI criminal case.

However, police and prosecutors in some counties in Florida are fighting back against people who refuse the breathalyzer or other alcohol test. They are having a judge available in certain situations, such as when police set up checkpoints or during times when police expect a lot of drunk drivers, who will quickly issue search warrants when a driver arrested for DUI refuses the breath test. In this situation, after the driver refuses the breathalyzer, the police officer will tell the judge why he/she thinks the driver has committed a DUI and request the judge to issue a search warrant to obtain the driver’s blood to be tested for alcohol content. In this situation, the police would not force the driver to submit to the breath alcohol test, but it would force the driver to submit to a blood alcohol test.

Ths method of getting a search warrant on the fly and forcibly taking one’s blood to test it for alcohol obviously raises several concerns. It is likely this will be challenged through the appellate courts in Florida and other states to determine if the strategy and the method are legal.

Is it Illegal in Florida to Doctor Shop for Prescription Drugs Without Misleading the Doctors?

Published on: January 26, 2011 | by Lasnetski Gihon Law

Police and prosecutors throughout Florida have significantly increased their attention on drug possession, distribution and trafficking crimes relating to pills (such as Oxycontin, Xanax, Hydrocodone, Oxycodone and many others) as opposed to more traditional drug crimes involving marijuana, cocaine, crack and heroin. New laws in Florida have been enacted to deal with pain clinics and people who acquire such pills without the proper prescription. Doctor shopping is one area where lawmakers, police and prosecutors are cracking down.

Doctor shopping, generically, deals with a person going to various doctors within the same time period (30 days) in order to get multiple prescriptions for the same or similar drugs. Because doctors and doctors’ offices may not have good networking systems that can tell them if a patient has seen a similar doctor or been given a related drug prescription in the recent past, people looking to acquire a large number of drugs may go to different doctors for prescriptions without each doctor knowing of the patient’s prior visits to the other doctors.

Florida passed a law making doctor shopping illegal. However, what must the state prove to establish that a person has broken the doctor shopping law and illegally obtained drugs without a prescription? Is it a crime if the patient fails to tell the doctor that he/she has seen another doctor and obtained a similar drug prescription within the last 30 days? Or, is it only a crime if the doctor or other medical personnel asks the patient if he/she has seen a different doctor and obtained a drug prescription within the last 30 days and the patient withholds that information or lies about it? The former places the affirmative duty on the patient to tell the doctor about a similar doctor visit. The latter places the initially duty on the doctor or doctor’s assistant and then requires the patient to tell the truth about other doctors and prescriptions. Of course, when talking about a serious felony charge in Florida, the distinction is important.