Jacksonville Criminal Lawyer Blog

Florida To Allow Police Officers to Stop Drivers For Failing to Wear Seat Belt

Published on: May 31, 2009 | by Lasnetski Gihon Law

A new proposed law is going to the Governor that would allow police officers in Florida to pull drivers over for failing to wear their seat belts. Of course, it is already a violation of the traffic laws for a person to drive without wearing his/her seat belt. However, it is currently considered a secondary violation, as opposed to a primary violation. If a violation is considered secondary, a police officer cannot stop a driver based on that violation alone; the officer can only ticket the driver for a secondary violation if the police officer has probable cause to believe the driver committed a primary violation first, such as speeding or running a red light.

Under the new law, a police officer can stop a driver and give him/her a traffic ticket for the seat belt violation alone. What implications does this have for criminal defense lawyers? Failing to wear a seat belt is not a criminal offense; it is a civil infraction, and this new law will not change that. However, as criminal defense attorneys know, traffic violations are often the starting point for criminal investigations into drug crimes and gun crimes. Police in Jacksonville, Florida and other parts of Florida will pull a driver over that they consider suspicious and use a traffic infraction as the basis for the stop. The police officer will then proceed to ask questions and initiate an investigation looking for illegal drugs or guns or other evidence of criminal activity. This new law may give police officers another basis to stop drivers who are driving appropriately but are not wearing their seat belts.

Of course, any time a police officer pulls a driver over and conducts a search for drugs, guns or other evidence, criminal defense lawyers will look closely into whether the police officer had a legal basis to stop the vehicle and conduct the search. But be aware that, assuming this law passes, there is one more good reason to wear your seat belt.

When Can a Police Officer Enter My House Without a Search Warrant?

Published on: May 29, 2009 | by Lasnetski Gihon Law

As residents in the U.S., we have the Constitutional right to be free from unreasonable searches and seizures. That protection from intrusion from police officers and other government officials is greatest in our homes. Normally, if a police officer wants to enter your house to look for evidence of a crime such as illegal drugs or guns, he/she needs to have probable cause and obtain a search warrant signed by a judge.

However, in rare cases, a police officer can enter your house without a search warrant. But, as indicated, those cases are rare. Consider this scenario as an example. The defendant forgets to pick up his eight year old child from school. The school officials call the defendant but cannot reach him so they call the local police department. The police department’s policy is to try and locate the parents before turning the child over to the Department of Child and Family Services (DCFS). The police officer takes the child to his house. No one appears home, and the doors are locked. The police officer and the child are able to open the locked garage door and go inside the house with the child. No one appears to be home, but there is also nothing unusual about the house indicating any type of trouble or emergency. The child and police officer walk around the house and find that the defendant’s room is locked. The police officer manages to open the defendant’s bedroom door and finds numerous bags of cocaine in the room.

Is this a valid search? No. Can the bags of cocaine be used against the defendant in court after his arrest for trafficking in cocaine? No.

GBI Firearms Expert Resigns After Testifying Falsely in Gun Cases

Published on: May 26, 2009 | by Lasnetski Gihon Law

A Georgia Bureau of Investigation (GBI) firearms examiner who routinely testified for the State in gun cases resigned from the GBI after it was learned that she gave false testimony in numerous cases, according to an article on AJC.com. The article indicates that the GBI firearms examiner mischaracterized in her sworn testimony the number of times she tested the guns about which she testified. This, of course, calls into question the reliability of her testimony in trials and her integrity as a firearms expert.

In a variety of criminal cases involving firearms, the State may elect to have an expert testify about the gun that was allegedly used by the defendant. In Florida, this person may be a firearms examiner from the Florida Department of Law Enforcement. In Georgia, it is often a firearms examiner from the GBI. The State will put on the examiner and ask questions about his/her education, training and experience with firearms generally, and the specific firearm(s) in question, as well as the number of times that person has testified as an expert in similar trials. All of this questioning is done to show the judge and the jury that the witness is an expert in firearms or the particular area about which he/she will be testifying. If the judge is satisfied that the witness has sufficient expertise in that area, the judge will officially qualify the witness as an expert and instruct the jury accordingly.

Juries in criminal (and other) cases often put extra emphasis on a witness’s testimony after the judge has proclaimed that he/she is qualified to testify as an expert. If that “expert” witness’s testimony later turns out to be flawed, it calls into question the legitimacy of any conviction in any trial in which that witness testified. Even if the problem with the testimony did not necessarily relate to material evidence affecting the defendant’s guilt, when a witness the State and the judge indicate to a jury is an expert witness is found to have lied about his/her expertise or testing methods, it raises serious doubts about the integrity of the criminal justice system that needs to be closely examined. Convictions in trials where this witness testified may need to be challenged.

Have the Police Taken Your Property? Be Careful of Strict Forfeiture Laws in Florida

Published on: May 24, 2009 | by Lasnetski Gihon Law

Police in Jacksonville, Florida and other areas of Florida can take property from people arrested (or under investigation) for various crimes and attempt to keep that property pursuant to the Florida forfeiture laws. This is called a forfeiture. It is important to understand the difference between seizure and forfeiture in Florida. A seizure takes place when the police take property from someone who is being investigated or has been accused of a crime. This taking is often done because the police consider the property evidence of a crime. If the police do not take any further steps regarding that property, it should ultimately be returned to the rightful owner. However, Florida law also allows the police to obtain ownership of the property if the police can establish the property was used to facilitate, or consisted of proceeds of, certain criminal activity. If the police and the state are successful, ownership of the property transfers to the state.

This kind of forfeiture often takes place in drug cases. For instance, Jacksonville police may stop a vehicle and conduct an investigation and find an illegal drug such as cocaine, marijuana, ecstasy or methamphetamine in the vehicle along with a large quantity of cash. The Jacksonville police and the state may decide to try and forfeit both the vehicle and the cash claiming they are being used and/or are proceeds of illegal drug activity. Florida law gives the police the right to initiate forfeiture actions on seized property for all kinds of property related to all kinds of crimes. The police can even try to forfeit a vehicle from someone arrested for driving under the influence of alcohol or drugs (DUI).

If you have had an encounter with the police in Jacksonville, Florida or in the Jacksonville area and the police have seized certain property belonging to you, or that you possessed that belongs to someone else, it is important that you assert your rights to your property immediately. There are important deadlines that, if missed, can result in the forfeiture of your property. If you have any questions about property that has been seized and/or forfeited, feel free to contact us so we can help you protect your rights and recover your property.

Another Constructive Possession of Drugs Case Reversed

Published on: May 22, 2009 | by Lasnetski Gihon Law

When police in Jacksonville, Florida and other areas of Florida stop a vehicle and find drugs such as marijuana, crack cocaine or methamphetamine somewhere in the vehicle, they will try and attribute those drugs to one or more individuals in the vehicle and make drug arrests accordingly. Police claim that even though the drugs were not found on a person, the person was in constructive possession of the drugs. However, police often extend the meaning of constructive possession beyond its legal application and arrest someone for drugs without just cause.

For instance, in a recent drug case near Jacksonville, Florida the police pulled the defendant over while he was driving a vehicle rented to another person. There was another passenger in the vehicle. The police had a tip from a confidential informant that the defendant was carrying illegal drugs. The police officer observed that the defendant made a move to close the center console and was nervous and shaking. The police arrested the defendant based on information from the CI and searched the vehicle. The police officer found cocaine and Xanax in the center console.

After the defendant was arrested for possessing the cocaine and Xanax, he went to trial and was convicted. The police and prosecutors argued that he was in constructive possession of the drugs. However, he appealed that conviction and won his appeal. The appellate court noted that in order to prove constructive possession of drugs the state needs to prove that the defendant knew the drugs were in the center console and had the ability to exercise control over the drugs. The state did not prove constructive possession of the drugs. The car did not belong to the defendant, and there was insufficient evidence to prove that the defendant knew the drugs were in the center console. Those drugs could have just as easily belonged to the passenger or the person who rented the vehicle. The fact that the defendant was nervous and shaking could be explained by any number of factors including the fact that he had been stopped and was being investigated by the police. Closing the center console may seem suspicious in hindsight, but it does not prove that he did it to conceal drugs in there.

Is a Tip From a Confidential Informant (CI) Sufficient for Police to Make a Legal Drug Arrest?

Published on: May 20, 2009 | by Lasnetski Gihon Law

It is not uncommon in Jacksonville, Florida or other areas in Florida for police to make a drug arrest based on a tip from someone commonly referred to as a Confidential Informant (CI). These tips can come from a variety of different people and can be anywhere from very general to very specific. Some CI’s are more reliable than others, and some of the tips are more thorough and accurate than others.

For instance, consider a case where a CI tells a Jacksonville Sheriff’s Office (JSO) officer he saw a man conduct a hand to hand drug transaction on a street corner in downtown Jacksonville, Florida. The CI is someone who has provided reliable information to the Jacksonville police officer in the past that resulted in drug arrests. The CI described the street corner, the clothes the man was wearing and said the drugs were in his left front pocket. The Jacksonville police officer then goes to that street corner, sees the man and makes an arrest. The police officer finds a bag of crack cocaine in his left front pocket.

Is this a valid drug arrest for possession of crack cocaine by the Jacksonville police officer? We would say no. The law says that a police officer must have a reasonable basis to stop a person for suspected drug or other criminal activity and must have probable cause of drug or other criminal activity prior to making an arrest. In situations involving a tip by a CI, two primary factors come into play. First, how reliable is the CI? Has he/she provided reliable tips that led to arrests in the past or are his/her tips often, or even sometimes, unreliable? In this case, the CI was apparently reliable with his tips. The second important factor is how specific and thorough the particular tip is. In this case, the tip was too general and did not provide enough information to allow the officer to just walk up to the man and make a drug arrest. The tip did not describe in any detail the activity that the CI considered a “hand to hand drug transaction.” How is the police officer, and later the judge, supposed to know that this CI can accurately detect a hand to hand drug transaction from some other type of hand to hand transaction? And how does anyone know at what angle and distance the CI observed the man and for how long? Additionally, the CI did not indicate the type of illegal drug involved, the packaging or anything else about the alleged transactions. Finally, when the polcie officer saw the man, he did not conduct any surveillance to confirm the tip nor did he know anything about the history of the alleged drug seller.

Federal Prosecutors Say Florida is “Ground Zero” for Mortgage Fraud Crimes

Published on: May 17, 2009 | by Lasnetski Gihon Law

On the Lasnetski Gihon Law criminal law blog, we have discussed on several occasions the trends we have noticed with federal investigations and prosecutions of various crimes depending on what seems to be the prevailing issues of the day. One trend we have noticed recently is the increased focus by federal law enforcement officials on mortgage fraud crimes. This is obviously due to the massive collapse of the housing market and the number of foreclosures that resulted.

To further underscore this point, federal prosecutors in Florida have called Florida “ground zero” for mortgage fraud cases in the United States and are organizing their resources accordingly, according to a recent article on the Tampa, Florida news website. The Tampa, Florida article indicates that federal law enforcement officials in that area expect to have approximately 100 mortgage fraud cases charged or under investigation by the end of 2009. Because of the long time it takes to investigate and prosecute mortgage fraud cases in federal court, the U.S. Attorney for the Middle District of Florida said he expects each of his 105 assistant U.S. attorneys to handle the added workload.

We have seen similar articles and other evidence of an increase in mortgage fraud investigations and arrests in Jacksonville and other areas of Florida. We wonder if casting such a wide net for these cases and employing the efforts of law enforcement officials and prosecutors who may not have the experience handling mortgage fraud cases will result in a number of innocent people being caught up in this effort. We also wonder if the line between aggressive but legitimate business decision-making and criminal conduct will get blurred by such large scale investigative methods.

Man Arrested for Drunk Driving While Driving a Motorized Bar Stool

Published on: May 15, 2009 | by Lasnetski Gihon Law

A man in Ohio was arrested for driving while intoxicated (DWI, but in Florida referred to as driving under the influence of alcohol, or DUI) for driving a bar stool that was rigged with wheels and a lawn mower engine, according to an article on NYPost.com. The police responded to a call that the driver wrecked the bar stool and was injured. When they arrived, the police noted that the driver was intoxicated from alcohol. Apparently, the defendant made the mistake of telling the police officer that he had chugged 15 beers prior to driving.

This is obviously a unique example of a DUI arrest, but it does illustrate the point of what can be considered a “vehicle” under the Florida DUI laws. The Florida DUI statute says that it is a crime to drive or be in actual physical control of a vehicle: 1) while being under the influence of alcohol or a chemical substance to the extent that one’s normal faculties are impaired, or 2) with a blood alcohol level of 0.08 or more. The definition of a “vehicle” under the Florida DUI laws is not often an issue in a DUI case, but it does come up occasionally. A vehicle is defined as any device by which a person or property may be transported upon a highway, except devices that exclusively use rails or tracks. Under this broad definition, it would seem that a rigged, motorized device that can move a person on the road would qualify as a vehicle for the purposes of the DUI laws in Florida.

New Police Camera Records Thousands of License Tag Numbers and Other Information in Florida

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

A new camera that is mounted onto the police cars of various city and county police departments in South Florida can take a picture of thousands of license tags per shift, according to an article on www.Sun-sentinel.com. The camera records the information on the license tag as well as where and when the picture was taken. The information on the license tag is run through a police database to check for matches with stolen vehicles and warrants for criminal offenders.

According to the article out of Hollywood, Florida, there are twelve police departments that are using this camera in the South Florida area. The police consider the camera to be a valuable and efficient tool to detect stolen vehicles and find people who have outstanding criminal warrants. Critics of the new camera worry that the camera and database, which permanently record and store information about innocent people, may be used for improper purposes in violation of privacy laws.

FBI Stepping Up Investigations Into Mortgage Fraud

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

The FBI is increasing its efforts to fight mortgage fraud, according to an article on Foxnews.com. The article indicates that the FBI is employing agents to work undercover and using wiretaps to investigate mortgage fraud activity.

In a prior blog post, I noted how federal law enforcement officials seem to shuffle their resources into different areas depending on the recent trends and media coverage. For instance, after 9/11 the FBI took a significant number of federal agents from various departments and redirected them to address immigration and terrorism related issues. More recently, after the economy began its downward spiral, the FBI has focused more on white collar crimes such as securities fraud and mortgage fraud. This article seems to confirm that the FBI remains focused on mortgage fraud activity, which is consistent with current events and news stories which are also focusing on the housing market, foreclosures and related financial crimes.