Jacksonville Criminal Lawyer Blog

What Are Police Officers Allowed to do to Search a Person’s Property Without a Search Warrant in Florida?

Published on: June 23, 2009 | by Lasnetski Gihon Law

We recently reviewed a drug case in the Jacksonville, Florida area with the following facts. The police received a general tip of illegal drug and other criminal activity occurring in the suspect’s home. That certainly was not a sufficient basis to obtain a search warrant so the police decided to go to the house, knock on the door and ask questions of the occupant(s). This house was in a rural area. The police arrived at the house, knocked on the front door and no one answered. The police officers were not deterred and decided to walk around the side of the house into the backyard and knock on the back door. While in the backyard, the police found marijuana. The owner of the house was subsequently arrested on possession of marijuana charges.

Was this a proper search of the defendant’s property and seizure of the marijuana? No. Police officers are permitted to approach someone’s home, knock on the front door and ask questions about possible drug or other illegal activity. However, if no one answers, the police cannot just violate a person’s right to privacy in his property by entering his backyard. A person’s 4th Amendment right to be free from unreasonable searches and seizures is strongest in his/her home. Police officers cannot just enter a person’s home or backyard without specific evidence of illegal activity and a search warrant in most cases.

In this case, the criminal defense attorney filed a motion to suppress the marijuana that was found in the defendant’s backyard. At the hearing, the police officers testified that it is common in rural areas for residents to accept visitors at their back door and the police officers had some reason to believe someone was inside the house. These two points are irrelevant. It really does not matter what the custom may be for receiving visitors in this area or that the police thought someone was home but just not answering the door. What does matter is that the defendant has a Constitutional right to privacy that protected him from the police entering his property without a search warrant beyond walking up to the front door to knock.

Police Cannot Claim Protective Sweep as a Basis to Search a Person’s House When No Threat Exists

Published on: June 21, 2009 | by Lasnetski Gihon Law

Police officers in Jacksonville, Florida or other areas of Florida may search a person’s house after an arrest based on the idea that someone else may still be in the house who poses a threat to the police officers. This kind of search is known as a protective sweep.

For instance, let’s assume that the Jacksonville Sheriff’s Office is serving an arrest warrant for a drug crime on a person at his house. The JSO officers have reason to believe the person is in the house. They are allowed in the house and arrest the person and find no other drugs or evidence of criminal activity. They take the suspect to the police car in handcuffs. They have no reason to believe anyone else is in the house. But, since the suspect has been arrested on a drug crime-related warrant, the police decide to go back in the house to see if anyone else is there and keep an eye out for illegal drugs or guns. Once back inside, the police find marijuana and crack cocaine on a table. Can the Jacksonville police use this drug evidence against the suspect on new drug charges? No.

This search is not valid. Police officers can conduct a protective sweep search of a house if they have a reasonable belief that there is a person(s) in the house who poses a threat to them. This reasonable belief of a threat must be based on actual facts. If the police do not have specific facts suggesting a threat inside the house, they cannot search the house once the arrest warrant has been served. Additionally, if the police do have specific facts suggesting a threat remains in the house, they can only go in for the limited time and purpose of finding and dealing with that specific threat. It is not a license to go back in the house and search for illegal drugs, guns or other evidence.

Children in Court

Published on: June 18, 2009 | by Lasnetski Gihon Law

A times, people contact Lasnetski Gihon Law to offer to submit a post or article for our Jacksonville Criminal Lawyer Blog. The following article was submitted by Kimberly Peterson who writes about online criminal justice degrees. She invites you to send your feedback to her at KimPeterson2006@gmail.com.

The establishment of juvenile courts was founded upon the belief that minors are unaware of their original intent in committing a crime. A five-year old who has committed a robbery or has stabbed someone does not yet have the moral capacity to understand that what he/she has done is not only ethically wrong, but also against the law. The ethics of children hardens by the time they are 18, although many states have deemed it necessary to try juveniles convicted of capital murder in adult courts, thereby exposing them to sentences in adult prisons. With the prison system the way it is, we are simply sending these children to a breeding ground of crime where they will be exposed to atrocities which they would otherwise have avoided in a juvenile detention center.

Juvenile centers were put into place in order to dissuade courts from sending minors to prison facilities, but also to keep an eye on offenders in an attempt to rehabilitate them before they reach the age of 18. The use of these centers is essential to swaying many teens from a life of crime, with over half of the teens admitted never returning to court. The goal is to get this number up closer to 100 percent. Many states have concluded that trying children in adult courts is more effective to deter them from returning to these courtrooms later in life; however, it has also been proven that by sending them to adult detention centers, this may only increase their odds of becoming a repeat criminal offender. The political decision in the mid-1990’s to combat what many thought was a rise in juvenile crime has turned out to be counter-productive and has instead led to an influx of adult prisoners who were sent to adult centers as minors.

Police May Try and Search Your House Without Probable Cause or a Search Warrant. Know Your Rights.

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

When police want to search a person’s house for illegal drugs or other evidence of criminal activity, the general rule is that they need to have probable cause and a search warrant signed by a judge to do so. However, there are circumstances where a police officer may be able to search a person’s home with little more than a hunch. Police officers often conduct what are called “knock and talks”. For instance, if a Jacksonville Sheriff’s Office police officer thinks there may be illegal drugs or other evidence in a person’s home, he/she may “knock” on the door and “talk”, or ask the owner or occupant if he/she can search the house. If the owner or occupant says yes and consents to the search, the JSO officer may be able to search the house without probable cause or a search warrant.

Under Florida search and seizure laws, a police officer does not need to have probable cause and a search warrant or even reasonable suspicion to conduct a knock and talk. There are cases which allow a police officer to approach a house, knock on the door and ask for consent to search for drugs based on only a hunch or educated guess. The theory is that if a sales person or stranger is allowed to knock on a person’s door and ask a question, a police officer can too.

When a police officer conducts a knock and talk to look for illegal drugs or other evidence, the issue is whether the owner or occupant gives consent to search freely and voluntarily. Even where the owner or occupant agrees to a search, that consent may not be considered free and voluntary under the law if certain factors are present such as a prolonged detention by the police officer(s), repeated requests to search, a threat that the police officer(s) will get a search warrant if consent is refused or any sort of show of force or intimidation by the police officer(s) to obtain consent. If police do anything more than simply ask for consent to search the house, the consent may not be valid under the law.

Are Men and Women Equally Affected by Identity Theft Crimes?

Published on: June 13, 2009 | by Lasnetski Gihon Law

Not according to a recent survey. Those survey results indicated that women are more negatively affected by identity theft crimes than men. Affinion Security Center surveyed 808 households and found that women are 26% more likely to be victims of identity theft than men. Additionally, on average, women lose more money than men when they are victims of identity theft.

If you have been the victim of identity theft or suspect that your identity and/or financial information have been compromised, there are steps you can take to prevent the theft or limit the damage. Many people who have been victimized by identity theft will not know it until much later unless they actively check their credit status. You can learn more about the steps you can take to detect identity theft and limit your exposure here.

How is a Self Defense Argument Presented in a Criminal Case in Florida?

Published on: June 11, 2009 | by Lasnetski Gihon Law

In Florida, a person who has been arrested for a crime of violence, such as aggravated assault, cannot be prosecuted for that crime if he/she was justified in using force, i.e. committed the act in self-defense. In other words, Florida law provides that a person can use force against another person if he/she reasonably believes such force is necessary to defend him/herself against another’s imminent use of force. A person can use deadly force if he/she reasonably believes that deadly force is necessary to prevent imminent death or great bodily harm to him/herself or another or to prevent the imminent commission of a forcible felony. (There are additional laws regarding use of deadly force in one’s home which can be found here.) A person does not have to wait for the other person to use force or commit the forcible felony. If it reasonably appears that the other person is about to use force or commit a forcible felony, a person can preemptively use force to prevent the attack or forcible felony.

How exactly does this defense play out when a person is charged with a violent crime when that person believes he/she had a right to use the force that he/she used? In Jacksonville, Florida and other locations in the First District, the criminal procedure allows a defendant to file a motion to have the judge dismiss the charges against him/her. That motion, which is filed by the criminal defense attorney, does not technically characterize the defendant’s justifiable use of force as a defense to the charges. The criminal defense lawyer’s motion will properly indicate that his/her client’s use of force renders the defendant immune from prosecution on the charges. Because the justifiable use of force defense is an assertion of immunity rather than what is referred to as an affirmative defense, the motion is made prior to the trial, and the judge will weigh the relevant evidence to determine if the defendant was justified in using such force. The defendant has the burden of proof, but the standard is by a preponderance of the evidence (i.e. greater than 50%) rather than the typical beyond a reasonable doubt standard the State has in a criminal case.

The judge cannot refuse to grant the defendant’s motion to dismiss the charge(s) based on justifiable use of force on the basis that the evidence on each side conflicts. The judge is supposed to weigh the evidence and grant the defense motion to dismiss if the defense establishes the force used by the defendant was justified by a preponderance of the evidence. If the judge makes such a determination, the judge must then dismiss the charge(s) against the defendant without the case ever going to a trial before a jury.

Medical Marijuana Laws Becoming More Prevalent in the United States, But Not the South

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

In some states, although not Florida, it is legal to purchase and smoke marijuana for medicinal purposes. Of course, in other states, such as Florida, purchasing and possessing a certain amount of marijuana will get you charged with a crime that carries a minimum mandatory three year prison sentence. We have discussed previously on this blog the travesty of some of the marijuana criminal laws and the financial black hole the war on drugs has created. We do feel that at some point in the future, viewpoints and laws on marijuana are likely to change.

Enacting laws that allow people who are sick and in pain to smoke marijuana to relieve their symptoms is a slow and incremental process. The laws typically have to be proposed and rejected several times before they are passed. In some states, like Florida and other states in the South, medical marijuana laws are much farther from a reality than they are in many states in the West. However, according to an article on www.Stopthedrugwar.org, medical marijuana is legal in 13 states and at issue this year in 19 other states. The article indicates that in 6 of those 19 states, the medical marijuana bill is favored to pass. Most of those 6 states are in the Northeast; none of them are in the South.

We do look forward to the day when nonviolent drug users, particular marijuana users, do not clog up the criminal justice systems, or worse, the jails and prisons, and drain the financial resources of the various states. Unfortunately, in the South, that day is still a long time coming.

Federal Government Devoting More Resources to White Collar Crime Cases

Published on: June 6, 2009 | by Lasnetski Gihon Law

Under the Obama Administration, the Department of Justice has indicated an increased focus on mortgage fraud and other white collar crimes. We have discussed this marked increase in investigations and prosecutions of various white collar crimes in previous blogs here , here and here. However, a recent press release from the U.S. Department of Justice further emphasizes the point that mortgage fraud and other white collar crimes remain high on the government’s list of priorities.

According to the press release, the government is currently investigating more than 2100 mortgage fraud cases, which is an increase of 400% from five years ago, and the government has doubled the number of agents investigating such crimes.

Supreme Court Ruling Makes Convictions for Crime of Aggravated Identity Theft More Difficult

Published on: June 4, 2009 | by Lasnetski Gihon Law

A U.S. Supreme Court ruling on the federal crime of aggravated identity theft makes it harder for the government to obtain a conviction for that crime. Several months ago, we wrote about how the U.S. government was using the federal crime of aggravated identity theft as a tool to deport illegal immigrants who often obtain fake social security numbers and cards when they enter the country. The federal crime of aggravated identity theft occurs when a person knowingly and without authority uses a means of identification of another person. For instance, law enforcement officials often arrest suspected illegal immigrants for using or possessing fake social security cards with fake social security numbers on them. However, since this criminal law requires that a person “knowingly” use the identification card of another, there was a question as to whether the law required a person to know that the social security number actually belonged to another person. The government’s position, of course, was that the law did not impose such a requirement for a conviction. Criminal defense attorneys argued that the government must prove that the defendant knew the social security number actually belonged to another person.

The U.S. Supreme Court appears to have sided with the criminal defense lawyers. If a person is arrested for the federal crime of aggravated identity theft for possessing or using a fake social security card, the government must prove that the defendant knew the social security number belonged to another person. Now, for a person who has a specific victim in mind and obtains his/her social security number and/or other personal information, this ruling may not be of much benefit. However, for someone, such as an illegal alien, who comes into the country and purchases a fake social security card with nine random numbers on it with no conception of whether they form an actual, assigned social security number, this ruling makes it very difficult to convict that person of the federal crime of aggravated identity theft. It also makes it difficult for law enforcement authorities to charge illegal immigrants with a serious felony that makes it easier to deport them.

New Law May Eliminate Differences in Sentencing Between Crack Cocaine Cases and Powder Cocaine Cases

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

The U.S. Department of Justice under the Obama administration has indicated an opposition to the current disparities between sentences in crack cocaine cases versus powder cocaine cases in the federal criminal system. Currently, as a result of the Anti-Drug Abuse Act of 1986, mandatory sentences in federal criminal cases are harsher for crack cocaine cases than powder cocaine cases. This is true even though crack cocaine and powder cocaine are basically the same. The primary difference is that crack comes in a form that is smoked while cocaine comes in a form that is snorted.

The difference in federal sentences for these two drug crimes has had a major effect on who has been going to prison for long periods of time as opposed to getting relatively minor sentences. For instance, a person convicted of the crime of distributing 5 grams of crack cocaine faces a mandatory sentence of 5 years in prison while it would take the distribution of 500 grams of powder cocaine to get the same mandatory sentence in federal court. Studies show that crack cocaine is more often used by lower income individuals and minorities. In fact, more than 80% of the people prosecuted for crack cocaine charges in federal court are African-American, according to the U.S. Sentencing Commission.

No law has yet passed to address the difference in sentencing between crack cocaine crimes and powder cocaine crimes in federal court. However, there is clearly a shift in criminal and sentencing policies with the Obama administration and some indication that a new law will be passed to eliminate this difference.