Jacksonville Criminal Lawyer Blog

Anonymous Tip of Illegal Drug Activity is Not Enough for a Search or Seizure in Florida

Published on: June 9, 2010 | by Lasnetski Gihon Law

As criminal defense lawyers in Jacksonville, Florida, we handle many drug cases and quite often, the search that led to the seizure of the illegal drugs was questionable. One example that occurred in a few of the drug cases we have is the police search for drugs based on an anonymous tip.

It is not uncommon for someone to call the police and, without identifying him/herself, claim that some person is committing some crime. The caller may say that a person is selling drugs somewhere or has drugs in his/her home or may be burglarizing a particular location. When the caller does not identify him/herself, the tip is considered anonymous. That puts the information in a different category in terms of reliability as opposed to information that comes from a known source. When police get an anonymous tip that a particular person is committing a particular crime, the police cannot just get a search warrant or just go and search the house, vehicle, person, etc. For instance, let’s say the police get a tip that Joe Smith who drives a while Chevrolet Malibu with blue stripes is growing marijuana at his pink and purple house at 123 Main Street. Police show up and see a pink and purple house with the exact car in the driveway. The identification information is confirmed, but unless the police observe something that corroborates the illegal activity, i.e. the marijuana growing, the police cannot search that house. When an anonymous tip is the basis for the investigation, the police need to see some evidence that corroborates the illegal activity, not just the identification information that anyone can see just by walking past the house.

Likewise, if the police received a tip that a white male wearing a orange shirt, green pants and a yellow hat is selling crack cocaine on the corner of Main and 1st streets, can the police stop and search him if they show up to Main and 1st and see that exact guy standing on the corner? No, not without some evidence corroborating the tip that he is actually selling drugs. The corroboration of the individual and his appearance is not sufficient to detain or search someone. If the police showed up, saw the guy and saw a couple of quick, hand to hand transactions, that would probably be enough for a brief detention to see if he was selling cocaine. However, when police get an anonymous tip of drug or other illegal activity, they need to verify the part of the tip relating to illegal activity before they can stop and search. If they just show up, confirm the identity of the suspect, house or vehicle and then search, any drugs or evidence obtained from the search may be thrown out of court.

It is a Crime in Florida to Transport a Person for Prostitution

Published on: June 6, 2010 | by Lasnetski Gihon Law

Everyone should know that prostitution is a crime, not necessarily in certain parts of Nevada and other countries, but certainly in Jacksonville and the rest of Florida. However, as criminal defense lawyers in Jacksonville, another crime we see that often comes along with a prostitution charge is the crime of deriving proceeds from prostitution or even transporting a person for the purpose of prostitution.

Escort services are advertised all over the internet, and there is a fine line between legal behavior, such as dancing or moedling, and illegal prostitution. Police officers in Jacksonville go onto those websites trying to make arrests for prostitution and related crimes. They set up a meeting in a hotel room and record the encounter. As soon as they feel like they have evidence of prostitution, they will arrest the woman and anyone who came to the hotel room with her.

In Florida, the crime of prostitution is fairly straightforward. But as mentioned, a person can also be arrested for transporting someone for the purpose of prostitution. For this crime, the state would have to also prove that the person knew or should have known that prostitution would occur. For instance, if a person transports a woman to a party or a club or some other place without knowledge that she will be performing prostitution services there, that person would not be guilty of the charge of transporting a person for the purposes of prostitution. Absent evidence that any money changed hands between the alleged prostitute and the person transporting her, the evidence of this charge may be weak.

Consent to Search for Drugs May Be Inferred By Police

Published on: June 3, 2010 | by Lasnetski Gihon Law

As criminal defense lawyers in Jacksonville, Florida, we handle a lot of drug cases of all kinds. In many of them, the police ask someone to search their home, vehicle or person and find the illegal drugs. After the person is arrested and comes to discuss their case with us, we always inform him/her about the Constitutional right to refuse any police request to search anything belonging to them.

If a police officer asks you if he/she can search you, your vehicle, your bag, your home or anything else you own or possess, it is important to politely but clearly say no if you do not want him/her to conduct the search. Courts in Florida have allowed searches where the suspect did not affirmatively agree to the search but made some gesture indicating the search may be authorized. For example, in one case, police came to an apartment to search it for drugs, and the suspect answered the door. When the police officer asked to search the apartment for illegal drugs, the suspect did not consent, but he did move out of the way so the police could enter. The Florida court did find this search to be valid. In another case, police asked a suspect if they could search his person. The suspect did not agree but held up his hands and spread his feet. This search was also determined to be valid.

It is very important to understand that police in Florida do not necessarily have a right to search anyone or anything that you own or possess without a search warrant. If a police officer asks you for consent to search, you have a right to politely refuse. If you do not make your refusal clear, it could be interpreted as consent and the resulting search may be upheld in court.

The War on Drugs Has Failed. . . And Was Pretty Expensive Too

Published on: May 31, 2010 | by Lasnetski Gihon Law

A recent article has concluded something just about all of us already knew- not that 2 + 2 = 4, but something much more fundamental: that the war on drugs was a catastrophically expensive failure. The article notes that even the U.S. drug czar acknowledges that the war on drugs has not worked. As a result, the Obama administration has decided to focus more on prevention and treatment and less on wasteful enforcement of ineffective criminal laws.

The article is worth reading and gives a brief, but interesting, history of U.S. drug policies. One troubling part of the article notes that the first war on drugs budget was $100 million in the 1970’s. Now, it’s $15.1 billion. It is scary to think where all of that money is going, why it’s being spent and how much of it is wasted.

4th DUI Offenders May Be Able to Get Driver’s License Back in Florida

Published on: May 28, 2010 | by Lasnetski Gihon Law

In Florida, a first time DUI, without an accident and injuries, is always a misdemeanor, but the penalties can still be quite severe. They range from possible jail time to a license suspension a fine and community service. The more DUI convictions a person gets, the more severe the penalties can be. In Florida, a third DUI charge can be charged as a felony which carries a maximum penalty of five years in prison. With a fourth DUI conviction, Florida law requires that the person’s driver’s license be suspended permanently.

However, a new proposed law in Florida would allow people with four DUI convictions and a permanent license revocation to possibly regain their driving privileges, according to an article on Firstcoastnews.com. With the proposed law, the person would have to go though educational courses and have an interlock device installed in his/her vehicle. An interlock device is a breathalyzer that the driver must blow into and pass before the car will start.

Interestingly, MADD supports the bill. Their reasoning is that there are a lot of people with permanently suspended licenses who are going to drive one way or another. With this law, those people would at least have the interlock device on their vehicles so they would not be able to drive their cars if they were under the influence of alcohol.

Florida Trafficking in Cocaine Case Thrown Out Because Search Took Too Long

Published on: May 25, 2010 | by Lasnetski Gihon Law

In a recent trafficking in cocaine case that took place a couple of hours south of Jacksonville, Florida, a police officer found cocaine in a person’s vehicle and arrested him after a long police encounter that was initiated as merely a traffic stop. Because the police officer too too long to conduct the search, the court ultimately threw the case out due to an illegal search.

Many drug arrests start out simply as traffic stops but turn into something more serious after the police officer searches the car. Once the police officer has stopped the driver for speeding, running a red light or some other traffic violation, the police officer may try to look for a way to conduct a search of the vehicle. Most of the time, the police officer will simply ask the driver for consent to search the vehicle. Everyone should understand that they have an absolute right to refuse when a police officer asks for permission to search a vehicle or anything else owned by that person.

If the police officer cannot get consent to search, he/she may look for evidence that drugs or other evidence of illegal activity are in the vehicle and use that as a basis for a search. However, if the basis for the traffic stop was a traffic violation, the police officer has limited time to come up with such evidence. The police officer cannot ask a bunch of questions or make up reasons to keep the driver at the scene while he/she waits for a drug dog to show up. If the police officer cannot uncover specific evidence of illegal activity within the time it would take to write a normal citation or warning for the traffic violation, he/she cannot extend the encounter in the hopes that incriminating evidence will surface or the drug dog will get there to sniff the vehicle. Once the time necessary for the traffic violation investigation has elapsed, the police officer has to let the driver go if no other incriminating evidence is revealed. If the police officer keeps the driver at the scene any longer, any evidence that is ultimately uncovered should be thrown out of court pursuant to the criminal defense lawyer’s motion to suppress.

Man Charged With DUI Manslaughter in St. Johns County, Florida

Published on: May 22, 2010 | by Lasnetski Gihon Law

A man from Connecticut was charged with DUI manslaughter in St. Johns County, Florida after the victim, Jeanne Aramini, died from her injuries suffered in the crash, according to an article on News4Jax.com. In Florida, a DUI charge can be anything from a misdemeanor for a first offense that normally carries penalties such as probation, a license suspention, a fine and community service to a third degree felony whcih can carry a maximum penalty of five years in prison to a first degree felony which can carry significant prison time. Obviously, when there is a crash and someone dies as a result of the crash, the state can charge the highest level of DUI which is DUI mansalughter. This is a second degree felony which carries a maximum penalty of fifteen years in prison in most cases, but it can be a first degree felony which carries a maximum of thirty years in prison if the suspect leaves the scene of the accident without providing the required information.

Driver Leaves the Scene of a Crash and Returns 10 Minutes Later. Is This a Crime in Florida?

Published on: May 20, 2010 | by Lasnetski Gihon Law

I read an article on a local Jacksonville website about an accident that occurred on Beach Boulevard in Jacksonville, Florida where a driver ran into the back of a motorcycle and then left the scene only to return with her mother ten minutes later. Is this a crime in Florida?

Most people are aware that all drivers have an obligation to remain at the scene of an accident that results in property damage and/or injury to exchange insurance and identification information. If a person is involved in an accident and leaves the scene without providing the required insurance and identification information, he/she commits a crime in Florida. If a person is injured in the crash, the hit and run crime is a third degree felony. If someone dies in the crash, the hit and run crime is a first degree felony with a mandatory minimum sentence of two years in Florida state prison. On the other end of the spectrum, if the accident results in property damage only, the hit and run crime is a misdemeanor.

What happens if a person keeps driving for some period of time but then decides to return to the scene of the accident? Technically, this is still a crime. The hit and run (aka leaving the scene of an accident) criminal statute says the person must stop at the scene of the crash immediately. Of course, police and prosecutors have discretion to forego an arrest or prosecution for a person who leaves but comes back on his/her own. However, as criminal defense lawyers who have handled many hit and run cases, we have seen cases where a person leaves the scene temporarily but returns and is still arrested and charged with a crime. In some cases, a person who temporarily leaves the scene may have an emergency which would provide a good defense to hit and run charges if the state decided to pursue them

State Must Still Prove Elements of Constructive Possession for Violation of Probation Cases

Published on: May 17, 2010 | by Lasnetski Gihon Law

In Jacksonville and throughout Florida, when a person pleads guilty or no contest to a crime or has a trial that ends in a guilty verdict, the judge will sentence the defendant. For more serious crimes, that sentence may include jail or prison time, probation or a combination of the two. When a person is on probation, he/she will have certain conditions with which he/she must comply or risk going back in front of the sentencing judge, having the probation revoked and being re-sentenced to harsher penalties. Prior to any sentence for a violation of probation, the defendant is entitled to a hearing on the probation violation allegations. These hearings are unlike a trial in two major ways. First, the judge decides whether the defendant violated his/her probation. A defendant does not have a right to have a jury decide probation violation cases in Florida. Second, the legal standard is lower for probation violation cases. In regular criminal cases, the state must prove the defendant is guilty by the “beyond a reasonable doubt” standard. In probation violation cases, the state need only prove a violation(s) occurred by “a preponderance of the evidence” standard, which is much lower. That latter standard is basically a “more likely than not” or “50% plus 1” standard.

A new crime committed by the defendant can certainly be the basis for a violation of probation case if the defendant was on probation when the new crime occurred. However, when the alleged violation of probation is a new crime, the state must still prove the elements of that crime. If the new alleged crime is a possession of marijuana or other illegal drug case and the state is relying on a constructive possession theory, the state must prove the elements required for constructive possession.

As we have written several times in the past, the state can prove possession of illegal drugs in two general ways. Actual possession is what it sounds like- a person is holding the drugs or has them on his person. Constructive possession deals with drugs near a person or in a place the person controls (such as his/her car or home) where the person knows the drugs are there and has the ability to exercise dominion and control over the drugs. Where drugs are near a person or in a place he/she is commonly found but the person does not know the drugs are present, the elements of constructive possession are not met and the person is not guilty of possession of the illegal drugs. This is true whether the allegation is a new drug possession charge or a violation of existing probation.

Jacksonville, Florida Couple Arrested for Growing Mushrooms

Published on: May 14, 2010 | by Lasnetski Gihon Law

Police searched the home of a Jacksonville, Florida couple on East Stanford Road and found illegal mushrooms growing in one of the closets, according to an article on News4Jax.com. The criminal drug statutes in Florida cover possession and manufacture of many illegal drugs including these kinds of mushrooms. However, in cases such as this where the police go into someone’s home based on an anonymous tip, the search of the house and seizure of the mushrooms may not be legal. Police often get anonymous tips about certain allegedly criminal activity, but that kind of tip alone does not authorize the police to search someone’s house.

Under the Florida and U.S. Constitutions, a person has a strong privacy interest in being free from illegal searches and seizures in his/her home. Because of that Constitutional protection, the police cannot just come into a person’s home, or get a search warrant, based on an anonymous tip. The tip has to be specifically verified or corroborated before it can even be considered as a legitimate basis for a search. Any time an anonymous tip is used by the police as a reason for a search, the criminal defense lawyer should closely scrutinize all of the facts the police allegedly had to justify the search and consider a motion to suppress any evidence found as a result of the search based on the defense that the search was illegal. If the search is found to be illegal, any evidence of illegal drugs found during the search will be thrown out of court.