Jacksonville Criminal Lawyer Blog

Corporate Executive’s Statements to His/Her Attorney May Not Remain Confidential

Published on: October 19, 2009 | by Lasnetski Gihon Law

Most people understand that when they have a private conversations with their lawyers about an existing or potential case, whether criminal or civil, those conversations are supposed to remain confidential. This is referred to as the attorney-client privilege, and it means that no one can compel the attorney or the client to disclose what was discussed between them.

However, in the context of a pending case or investigation involving a corporation and its executives or employees, it may not be clear who exactly the attorney represents. For instance, in a recent federal criminal case, the government was investigating a company and its chief financial officer for conspiracy and securities fraud. The company hired a lawyer to assist with an internal investigation and an audit. That lawyer interviewed the CFO who gave that lawyer important information critical to his own case. The CFO believed that the lawyer was his lawyer and all communication between the two was confidential and private. This particular attorney had even represented the CFO in the past in civil cases, which further led the CFO to believe that he was having confidential discussions with his personal lawyer.

Subsequent to those conversations with the CFO, the lawyer disclosed information from those conversations to other lawyers and accountants assisting in the internal investigation of the company and ultimately to the government. The government then intended to use that information against the CFO.

Polk County, Florida Drug Officers Play Video Games While Serving Search Warrant

Published on: October 16, 2009 | by Lasnetski Gihon Law

I found an article showing Polk County, Florida (about four hours south of Jacksonville, Florida) police officers serving a search warrant looking for drugs. They did not realize that the owner of the house set up surveillance cameras in his house. While some of the police officers appeared to be searching the house, several others were playing Wii bowling, a popular new video game. You can read the article and see the video here.

I can honestly say I have never seen anything like this before. But the real question for the person charged with the drug crime(s) is what effect this improper police behavior will have on his case. The right to search the house was based on a search warrant. Assuming that search warrant was valid and based on probable cause, this behavior probably will not affect the police officers’ right to enter the house. However the Fourth Amendment protection against unreasonable searches and seizures also affects what the police can do once they enter the house pursuant to a valid search warrant.

The search of a house must be conducted as quickly and efficiently as necessary to search only for the items listed in the search warrant. Obviously, if police officers are playing video games rather than getting in, getting the search done and getting out, they are not abiding by their Fourth Amendment obligations. A criminal defense lawyer would file a Motion to Suppress based on the alleged Fourth Amendment violation to try and have any drug seized in the house thrown out. In any case, if the drug charges go to a jury, the criminal defense lawyer has a lot to argue about the reliability of the police and the manner in which the drug investigation was conducted.

Florida Man Convicted of Sex Crimes for Exposing Himself On Web Camera

Published on: October 14, 2009 | by Lasnetski Gihon Law

In a recent case near Jacksonville, Florida a defendant was charged with the sex crimes of lewd or lascivious exhibition and transmitting an image harmful to minors by an electronic device. The criminal charges stemmed from an undercover operation during which a police officer posed as a thirteen year old over the internet. According to the police, the defendant began communicating with the police officer in a sexually inappropriate manner. The defendant and the police officer were chatting on Yahoo Instant Messenger. At some point, the defendant set up a web cam and exposed his penis several times. The defendant was ultimately arrested and charged with the two sex crimes.

At trial, the defendant argued that what he wrote on Yahoo Instant Messenger and what he showed on his web cam were protected by the First Amendment right to free speech because it was done through a public website. However, the court found that communications over the internet directed to children are not protected by the First Amendment and the state has a compelling interest to protect children from harmful materials on the internet.

One question that comes up regarding the sex crime of lewd or lascivious exhibition is what the words “lewd” and “lascivious” mean. Unfortunately, these words are not defined in the criminal statute. So, there is no easy answer as to what conduct is criminalized under this law. Whether conduct is lewd or lascivious is decided first by the police and the prosecutor who decide to make an arrest and bring criminal charges, but ultimately by a judge or jury. The statute gives an example of lewd or lascivious conduct as follows: exposing one’s genitals in a lewd or lascivious way. Of course, when the definition includes the words we are trying to define, that definition is not very helpful.

State and Federal Law Enforcement Still Arresting Record Numbers on Drug Offenses

Published on: October 12, 2009 | by Lasnetski Gihon Law

Recent statistics show that there were over 1.7 million arrests on drug charges in the United States in 2008. One might expect that many of these arrests targeted the more serious drug offenses like trafficking and manufacturing dangerous drugs like cocaine, heroin and methamphetamine. That was not the case.

Of the 1.7 million drug arrests last year, about half of them were related to marijuana, and most of those were for possession of marijuana. In Florida and the other southern states, arrests for possession of marijuana comprised more than half of all drug arrests. Fewer than 20% of all drug arrests were for drug dealing or manufacturing. In 2008, the number of people arrested for drug crimes was approximately three times that of violent crimes.

What this boils down to is we are still expending a tremendous amount of money and resources going after petty drug offenses at the expense of much more serious criminal offenses.

Financial Identity Theft Becoming More Widespread

Published on: October 9, 2009 | by Lasnetski Gihon Law

I read a good article on identify theft from the Miami paper. The article discusses how the crime of identity theft is not only becoming much more prevalent, but is also becoming harder to detect. This is the case in Florida and throughout the country.

The following are some of the more interesting points made in the article. Only 1 out of every 700 people who commit identity theft is ever arrested. When you consider that identity theft is often a difficult charge for prosecutors to prove, the percentage of people who are actually convicted of identity theft is quite a bit lower than the 1 in 700 figure. Additionally, the effects of identity theft can be extremely onerous on a person. However, those effects are not always immediately apparent like with other crimes. The article noted that on average, a person victimized by identity theft does not realize he/she is a victim of identity theft until a year after the actual theft. One of the best ways to stay diligent and reduce this lag time is to check your credit reports at the three major credit reporting agencies (Equifax, Experian and Transunion) at least once a quarter. Finally, the author of the article illustrates how easy it is for skilled hackers to gain access to other people’s information. However, most people and businesses fail to appreciate the risk of a compromised network and do not take adequate security measures. This only exacerbates the problem of more identity thefts and fewer detections of identity thefts.

Are DUI Roadblocks Legal in Florida?

Published on: October 7, 2009 | by Lasnetski Gihon Law

Every now and then, a driver in Jacksonville, Florida and other areas of Florida will come across a DUI roadblock and get stopped by the police who are randomly looking for people driving under the influence of alcohol or drugs. We all should know that normally the police cannot stop a person in his/her vehicle (or otherwise) without specific facts indicating he/she is committing a crime or traffic violation. If a DUI roadblock randomly stops people without any prior facts indicating a crime or traffic violation, how can this be legal in Florida?

The highest court in Florida decided that DUI roadblocks are legal if they meet certain criteria. The main criteria of a proper DUI roadblock is that the police must establish a written plan in advance detailing how the DUI roadblock will operate and when and how vehicles will be stopped. This plan must take as much discretion away from the police officers as possible regarding the decision as to who will be stopped. In other words, if the police officers at a DUI roadblock are allowed to decide at the scene who gets stopped based on their own subjective observations or the police officers develop their own plan for stopping vehicles at the DUI roadblock, this is not a legal DUI roadblock. The police officers are required to plan in advance how the vehicles will be stopped that does not leave the decision up to the discretion of the police officers. If the plan dictated that the police officers can stop every vehicle or every 5th vehicle, that would be legal. But if the police officers were permitted to stop every vehicle that looked a certain way or every vehicle with a certain kind of driver, that DUI roadblock would likely be considered illegal. If the DUI roadblock is considered illegal, the DUI charge should be thrown out of court.

Other factors relating to a valid DUI roadblock are whether the DUI roadblock is well marked and warning signs are provided so it is as safe as possible for motorists. The police officers must also be in uniform and easily identifiable as police officers. While police officers are permitted to stop drivers at a valid DUI roadblock, that stop must be as brief as necessary to investigate DUI’s, and the encounter with the driver must not be more intrusive than necessary.

Incriminating Evidence and Statements From Defendant May Be Suppressed After Improper Arrest in Florida

Published on: October 5, 2009 | by Lasnetski Gihon Law

In a recent trafficking in methamphetamine and marijuana case, the police went to the house of the suspect with a warrant for his arrest. The police officers knocked on the door without announcing who they were and why they were there. The police officers then opened the door and found the suspect inside. They also found marijuana in the home that was the basis for the trafficking in marijuana charge. After his arrest, the suspect made some statements that the State intended to use against him in court.

Later in the case, the criminal defense lawyer moved to have the evidence of the marijuana and the defendant’s statements thrown out based on an illegal arrest. In Florida, we have a law that says the police must knock and announce themselves and their purpose before entering a person’s home to execute an arrest warrant. This is a compromise between a person’s a 4th Amendment privacy interest in his/her home and the State’s right to serve valid arrest warrants at a person’s home. In addition to knocking and announcing who they are and why they are there, the police must give a person a chance to open the door and let the police inside before coming in on their own.

In this case, the police violated the knock and announce statute by failing to make the proper announcements and waiting to see if someone would answer the door. The question then is: what is the proper remedy for the defendant after such a violation? The proper remedy is not that the charges that were the basis of the arrest get dropped. However, there is support in the law in Florida that if the police obtain any evidence as a result of the improper arrest, that evidence will get thrown out and may not be used against the defendant in court. Therefore, if the police violate the knock and announce statute, any evidence they find in the house after the illegal entry and any statements they get after entering the house may be thrown out of court.

Can a Police Officer Handcuff a Person During a Brief Detention and Patdown?

Published on: October 2, 2009 | by Lasnetski Gihon Law

Consider a fairly common situation where a police officer makes a traffic stop of a vehicle. The police officer testifies that he saw the driver shuffling around in the vehicle as if he was trying to hide or grab something, such as a gun or illegal drugs. In this case, the police officer testifies that he suspected that the driver may be armed and/or involved in drug activity so he removes the driver from the vehicle to conduct a brief search for weapons. This is referred to as a patdown for weapons. Can the officer handcuff the driver prior to the brief patdown? Normally, where the officer can testify to specific facts indicating there may be a threat of harm, he/she can briefly handcuff the suspect(s) and briefly pat him/her down to see if he/she is in possession of a gun or other weapon.

However, once the suspect is patted down and no weapons, drugs or other illegal items are found, the officer must remove the handcuffs. Additionally, any basis for a further patdown or more invasive search has disappeared once the patdown has been completed and no threat is apparent.

This came up in a recent drug case south of Jacksonville, Florida where the initial patdown did not produce any guns, drugs or other evidence of criminal activity. However, the police officer kept the suspect in handcuffs. A second police officer came to the scene, patted the suspect down and found a crack pipe and some cocaine. That person was charged with possession of cocaine and possession of drug paraphernalia, but the case was later dismissed because that search was illegal. Once the initial officer conducted the pat down and did not find anything, there was no additional basis for a second patdown. The officer should have removed the handcuffs and allowed the person to leave. The second patdown was illegal, and the evidence seized as a result of that patdown could not be used in court.

Contractors Arrested for Fraud in Jacksonville, Florida Area Counties

Published on: September 30, 2009 | by Lasnetski Gihon Law

Several fence contractors were arrested for fraud in the Jacksonville, Florida area, according to an article on Firstcoasnews.com. The allegations are that the contractors took money from the victims but failed to perform the requested work.

When the state prosecutes contractors for fraud, these cases are not as clear as they may seem to the police and the prosecutor. When a contractor accepts money to do a job and never returns, that is one thing. However, because of the way the contracting business works, there are often unavoidable delays and other issues that can prevent a contractor from beginning work when he/she originally planned. Other times, a contractor performs the work, but the client is not satisfied or the client and the contractor had different ideas as to what work was to be done and how. The client may go to the police and claim fraud, but these kinds of cases are more appropriately left to the civil courts. Sometimes, there is a dispute over money that also is not criminal. For instance, the job may cost more than the contractor initially estimated or the client does not pay the installments in time. This may result in a delay in the job. That does not mean a crime has been committed, but rather a difference of opinion that should be resolved outside of the criminal courts.

We have seen many criminal prosecutions of contractors. Some are warranted based on clear fraud committed by the contractors. But other times, there is an honest dispute between contractor and client that should be resolved informally or by a civil lawsuit.

Drug Case Gets Thrown Out After Police Illegally Enter Home

Published on: September 28, 2009 | by Lasnetski Gihon Law

In a recent drug case south of Jacksonville, Florida, the defendant’s drug charges were thrown out after the court ruled that the police officer was not authorized to enter the defendant’s home and any drugs that were found in his home were illegally seized.

In this case, police officers responded to a call of several people trespassing at an apartment complex. The police arrived and saw several people at the complex. The police approached the group and started to ask questions about what they were doing there. Rather than stay around and answer questions, the defendant walked away from the police and into his apartment nearby. One of the police officers followed the defendant into his apartment and saw him drop some bags containing marijuana and cocaine. The defendant was then arrested for possession of marijuana and possession of cocaine.

However, these charges were thrown out and the case was dismissed because the police officer did not have authority to enter the defendant’s apartment.