Florida Criminal Law Blog

U. S. Court Rules No More Dog Sniffs at Door to Establish PC

Thu, 28 Mar 2013 06:25:03 -0600

The United States Supreme Court issued its opinion in Florida v. Jardines on March 27, 2013, holding that a dog sniff at the front door of a house where the police suspected drugs where being grown constitutes a search for purposes of the Fourth
Amendment.

On occasion if law enforcement does not have sufficient probable cause for a search warrant they will employ a drug detection dog to determine if the dog alerts to the presence of narcotics from outside the door of the suspect's residence. What the Jardine case states, is that the use of a dog constitutes a "search" under the Fourth Amendment. Although I have had not time to read the 5:4 decision completely to determine it's impact on other cases where dogs are used to establish probable cause for searches, such as automobiles, this decision seems to say that a dog alert alone will not be sufficient probable cause standing alone to support a search warrant.

In the early 1990s, I had a major federal drug conspiracy trial in the Pensacola Division of the Norther Federal District Court where officers used a dog sniff from outside my clients apartment door to establish probable cause for the issuance of a search warrant when executed revealed the presense of a large quantity of cocaine.

I will up date this post further once I have had time to read the Jardines opinion to determine what if any impact it may have on other dog sniff search and seizure cases under the Fourth Amendment. The US Supreme Court recently reversed Florida's supreme court in Florida v. Harris which placed the burden on the prosecution to show the false alert and other training and credentialing of a cannine in the context of the search of an automobile. As citizens of the State of Florida and as U.S. citizens we have a greater expectation of privacy in our homes than in our cars. (See previous blog posts for this issue).

The Florida Supreme Court's case that was heard by the U.S. Supreme Court on March 27, 2013 was State v. Jardines, 73 So. 3rd 74 (Fla. 2011), which ruled that the dog sniff at a private residence was an unlawful intrusion into the Fourth Amendment rights of a citizen to be free of unlawful searches and seizures in their home. The State case is very lengthy and describes in detail the distinctions between different types of issues involving canine searches.

The Search of Smart Phones, I Pads and other Electronic Devices

Wed, 06 Mar 2013 08:53:47 -0600

A Florida Senate Bill passed the Florida Senate Criminal Justice Committee on Monday, March 4, 2013, that would require law enforcement to obtain a search warrant before it could search the smart phone or any cell phone of someone who has been arrested. There is also “rumblings” of a bill that would require law enforcement to specify which programs would be searched in a computer that was legally seized by law enforcement when executing a search warrant giving them permission to search a home and seize computers, electronic devices, etc. when police have a warrant based upon probable cause that the computer was used to commit a crime. The new Senate phone bill was objected to by law enforcement and prosecutors. The genesis of such bills of course the abundance of personal information that most people store on cell phones or I Pads and other such electronic tablets or smart devices. Why should law enforcement have access to private information that has nothing to do with the crime being charged against the individual who possesses the smart phone or I Pad, etc.? Law enforcement officers when they are issued a search warrant based on probable cause to search a home for a shotgun, for instance, are not allowed to look in bathroom cabinets or kitchen drawers or any place a shotgun could not be located. (This is not to say this does not happen). In my opinion, in many instances, there really is no logical difference between searching areas of a smart phone device for evidence of a crime if there is no probable cause that evidence of the crime is located there. However, it’s my understanding that this bill is far more sweeping. Currently, if a person is arrested law enforcement currently believes it has “carte blanche” authority to search the seized cell phone and go through every text, photo, email, etc. without a warrant. In the Northern District of Florida, Pensacola and elsewhere, I have had cases where law enforcement has obtained a search warrant for a cell phone because the law is not well settled. However, this seems to be more the exception that the rule.
The “smart phone bill” is by no means law yet---- albeit the Senate Criminal Justice Committee approved the bill (SB 846) on a 5-2 vote it will then be sent to the Judiciary Committee. Then if it passes there is needs approval from the Appropriations Committee before it can go to the floor of the Senate for an overall vote. Then a House of Representatives companion bill (HB 797) by Rep. Carlos Trujillo, R-Miami, is awaiting its first committee hearing.
The Senate bill also would require police to get a court to sign off on informational tracking of an electronic device for investigative purposes. In other words, law enforcement could not track your cell phone without a court order. (This is somewhat analogous to the recent U. S. Supreme Court case, Jones, cited in a blog post below, where police must obtain a warrant to use tracking devices for vehicles placed by law enforcement to track the whereabouts of suspect vehicles).
Search and seizure rules involving smart phones or electronic storage devices are the subject of two cases pending before the Florida Supreme Court. In Smallwood v. State, a cell phone search was upheld by the First District Court of Appeal which is the appellate court that covers the law in Northwest Florida including Pensacola, Destin, Milton, etc. However, in the Fourth District Court of Appeal has ruled on real-time tracking of such devices, such as that mentioned in Jones, above, finding that people have no real expectation of privacy while driving around on the open road but that appellate court knowledge that the changing nature of technology for cell phone tracking begged for a higher court ruling on the issue. This ruling is at odds with Jones, which is a U.S. Supreme Court ruling.

Lack of Remorse Cannot Be Used to Enhance Someone's Sentence

Sun, 10 Feb 2013 07:59:59 -0600

In many cases, mitigation of a case should begin at the very outset of a case by the lawyer taking a very proactive position immediately upon taking the client’s case. Often times what is done right away by taking a proactive posture on such things as psychological evaluations, immediately interviewing witnesses, counseling/therapy, substance abuse rehabilitation, letters of apology, etc. are some things that can be used early in a case that can have a tremendous favorable impact on the outcome of a case. I published an article in a Westlaw publication, unfortunately West has the copy right or I would link you to the article here, about building a mitigation case from the beginning, regardless if the case may be one that ultimately may go to trial. Caveat: these measures should NEVER be done without the guidance of an experienced lawyer who is ethical and skilled at negotiation and trial practice. In other words, Clients or those charges SHOULD NEVER do these things on their own.
The First District Court of appeals yesterday reversed a trial court for imposing a greater sentence because the convicted defendant did not show remorse. WE all know that innocent people get convicted every day throughout our country. How could we expect someone who is truly innocent to show remorse. In Dumas v. State, 1D12-1275 (Fla. 1st DCA Feb. 8, 2013) the First District Court of Appeals in Florida that includes Pensacola all the way to Defuniak Springs reversed a trial court because it imposed a longer sentence because the accused did not show remorse. Bravo for the First DCA.

Sometimes Being Fair and Impartial is Just Not Enough

Wed, 06 Feb 2013 18:39:59 -0600

The First District Court of Appeals, which includes cases in Pensacola, Milton, Fort Walton and Destin, among other cities located in the panhandle of Florida, reversed a case yesterday because the prosecution exercised a "challenge for cause" improperly.

In a nutshell, there are two types of challenges that an attorney can make against a prospective juror being seated as a juror in a criminal or civil case. Depending on the type of case or charge, each side is given a set amount of “peremptory challenges.” A peremptory challenge is basically a challenge the attorney can make without providing a reason. However, opposing counsel may object to a peremptory challenge if he or she believes the challenge is improperly based upon race, sex, or other identifiable classes.

The other type of challenge is called a “challenge for cause.” A challenge for cause is exercised against a juror if there is no reasonable doubt that the challenged juror can be fair and impartial. In Blake v. State, 1D12-1385 (Fla. 1st DCA Feb. 5, 2013), the appellate court reversed a conviction because a prospective juror had merely indicated he was the fiance of a public defender in a different area of the panhandle of Florida. The prospective juror acknowledged that his fiancee talked to him about the types of cases she worked on but also indicated he would have no problem finding a person guilty if the evidence supported such a result. The State moved to strike for cause this prospective juror solely on the basis of his engagement to a public defender employed in a different circuit and over Mr. Blake's attorney's objection, the court granted the strike. This is somewhat technically based, but Mr. Blake argued that merely because the State had additional peremptory strikes that the conviction should still be reversed based upon the Florida Supreme Court's ruling in Ault v. State, 866 So. 2d 674 (Fla. 2003), which, in turn, was based on United States Supreme Court precedent. In Gray v. Mississippi, 481 U.S. 648, 107 S.Ct. 2045, 95 L.Ed.2d 622 (1987) explained that the unexercised peremptory argument assumes that the crucial question in the harmless-error analysis is whether a particular prospective juror is excluded from the jury due to the trial court's erroneous ruling. Rather, the relevant inquiry is “whether the composition of the jury panel as a whole could possibly have been affected by the trial court's error.” Ault, 866 So. 2d at 686 (emphasis in original). Based on Ault, the the First District Court of Appeal found that the prosecution's concession is correct, but its harmless error argument is not, and reversed Mr. Blake's conviction remanding the case for a new trial. The bottom line is merely because a prospective juror was engaged to a defense attorney was not a sufficient basis for the prosecution, in this case, to challenge the juror for cause because he clearly stated he could be fair and judge the evidence and the facts and convict someone if the prosecution proved their case.

Jury Duty In Escambia County

Sun, 20 Jan 2013 15:50:56 -0600

I apologize for not blogging or blawging, however one wants to spell it, more the last few months. I have been interested in writing on many different topics but with some of our recent cases coming to resolution, traveling near the end of the year, and attending both a Trial Lawyers College workshop and annual meeting and attending a retreat and mission work with Don Miguel Ruiz, Jr. M.D., near Liberia, Costa Rica, my priorities have lied elsewhere lately.
A recent experience I learned a great deal from was being summoned for jury duty in Escambia County last week. Albeit I have been summoned four times and never chosen to sit on a jury, I always find the experience interesting because of being on the other side of the fence, so to speak. (Lawyers often believe other lawyers cannot be impartial and follow the law which is simply not true).
The day started out by having to arrive at the Courthouse at 8:00 AM and, after checking in much like one would do as if casting a vote, we were directed to sit in a room that probably held 350 or so people. People arriving late were directed to an overflow room, where they watched everything going on within the room I was sitting in on a video fed television.
The first video we all saw was from our Chief Judge who told us, among other things, “don’t be nervous” or “anxious,” that most trials only lasted a day or less, and do not access the internet at anytime about the case you are sitting if selected to be a juror and do not talk to anyone, including your spouse, about the case if you become a juror. I have always felt that people who are on the panel, as it is called, of potential jurors who are brought into a courtroom and questioned by the judges and attorneys were, to some degree, nervous. I always have been and I have been a lawyer for 28 years! It is an tremendous responsibility to sit and judge the facts of a case, be it a criminal or civil case, knowing that your decision is going to impact someone’s life possibly forever. Questions such as “is the lawyer being honest with me?,” “is the Judge’s attitude towards a party a signal of who is telling the truth and who isn’t?,” “does the Judge know more than I do about the case?,” or “what kind of personal information am I going to have to reveal in front of all these strangers going through this process?” These questions and others seem to me, to create a certain level of anxiety in a person. It is because of this that when I am actually picking a jury as a trial lawyer that I admit to them that I am nervous myself---I do so because I honestly am—it is an awesome responsibility to represent someone who is going to win or lose and who’s case I am totally invested in. I wouldn’t want a lawyer representing me who wasn’t nervous! I also admit that when I have been summoned for jury duty I am nervous myself because, I guess more than anything, fear of the unknown and the questions outlined above. “If I am picked for this jury, am I going to do justice?”
After watching the first video, a second video from the Chief Justice of the Florida Supreme Court is played wherein he tells us that “it is your justice system” and it “exists to serve you!” Well that didn’t make my anxiety go away either.
Then a third video is played: this time a woman talks about the basics of jury qualification and talks very briefly about the qualifications of jurors. (In Florida jurors in the State court system are selected based upon driver’s license rolls; in the Federal system, by voter registration). She also talks very briefly about the difference in the burden of proof between a civil and criminal case. She instructs us how important it is to be candid with the lawyers and judge involved in the case in the Courtroom we are eventually taken and it’s our basic responsibility as a juror to render a “fair and impartial verdict.” I don’t know how many times through sitting through four jury selections that day I heard the lawyers ask “can you be fair and impartial?” – The question being asked, based upon such little information provided to us - how could one possibly know how to answer? The vast majority of the jurors just nodded their heads affirmatively to this hollow, in my opinion, meaningless question. (There are exceptions of course—if someone hates insurance companies or if someone has been a victim of a serious crime, yes, they would know if they could be fair and impartial). The lady in the video mentions we can’t do our own investigation during the case, e.g. internet searches, etc., that closing arguments are not evidence and to expect each lawyer to ask us to render a verdict in his or her client’s favor. OK, I understand that. I am still apprehensive. She also interestingly does not state if chosen to be on a jury, one of us will be elected “foreman.” Instead she mentions one of us will be elected by the other jurors as a “presiding juror.” She explains a person in this role makes sure each person has a chance to talk and that each person should vote the way their intellect and conscience tells them. I think she also should have said that the “presiding juror’s” vote is no more or less important than any other person’s vote and that it is not the “presiding juror’s” role to try to influence how the vote is decided; that their job is primarily to collect the ballots. I think the video, albeit implicitly stated only because of the use of the term “presiding juror,” also should explain the “presiding juror” can be a man or a woman.
After these videos were played the Clerk of Courts comes in and swears in the entire 350+ of us as qualified jurors. He is accompanied by the Sheriff who is entirely silent. Why he is there, I don’t know. Escambia County’s Sheriff was meeting jurors and shaking hands, etc. at the parking lot where many people park who have jury duty until the Federal Judges of the Northern District of Florida said “no more.” To me, and perhaps the Sheriff did not realize this, but by his shaking the hands of potential jurors and even giving some of them his card created an improper relationship of sorts between the potential juror and the Sheriff. The potential juror might sit on a case where one of the Sheriff’s deputy's credibility is at issue. Would the juror think that if he decided the deputy wasn’t credible and decided against the deputy and for a criminal defendant, the juror’s ability to pick up the phone and call the Sheriff might be hindered? I don’t know but the federal judges didn’t like it and put an end to that. But why the Escambia County’s Sheriff merely walks in with the Clerk of Courts is unknown to me. He didn’t say anything to the group which I think would be an extremely bad idea for the aforementioned reason but his merely being there seemed to me to be a non-issue to me and a waste of time for him.
Once taken into a courtroom after one particular judge called for 65 of us to come in, we discovered we were on the jury panel for four separate, serious criminal felony cases. The judge was very nice and respectful to us and did explain again a few things and more about the law, our roles as potential jurors or jurors if selected, and then handed it off to the lawyers. I was still a bit anxious and I know others were also because some of them told me so. I think, just like most good trial lawyers, a juror who is taking his or her role seriously should be a nervous or anxious to some degree. It is a tremendous life changing decision the people chosen to sit on a jury are going to have to make that will impact someone’s life and sometimes multiple families’ lives. It’s an imposing responsibility and should be taken very seriously. I am still taken back by lawyers who, during jury selection, say, “well the other lawyers went before me and I won’t take up much of your time because they have asked many of the questions.” This is ABSOLUTELY not true. How might you feel if you were on trial for something you did NOT do, or had an serious injury for the rest of your life because of someone else’s negligence and your lawyer says I am not going to ask you many questions because some other lawyer asked questions about their cases???? Each case is entirely different with different witnesses, facts, dynamics, and physical evidence as well as different laws that must be applied to the individualized facts! One defense lawyer that day, asked no questions!
In my opinion, no lawyer should ever apologize to a jury panel for taking additional time, as much as they need, to ask potential jurors in depth questions about themselves. Of course it’s a given, the lawyer should not ask questions that are a waste of time or to show how funny he or she is because they have a captured audience. When I have had to be second or third to ask questions during jury selection I always explain to the panel “I may have to ask you questions that may take longer than the previous attorney because I have to get to know you because you, if selected, are going to be deciding Mr. or Ms. Jones fate and his or her liberty is at stake here.” And if the opposing counsel has been funny or gotten the panel to laugh at his or her jokes, then I explain to the panel “I apologize for not being funny like Mr. or Ms. Lawyer was because, honestly, this is no laughing matter. This is an extremely serious matter because Mr. or Ms. Jones liberty is at stake or the facts are such that Mr. or Ms. Jones is seriously injured and your decision will impact them the rest of their lives, long after this trial is over. “
One thing that surprised me some from my jury panel experience is how many people knew one another on the same panel. Of course Escambia County, with a total population of 350,000 or thereabouts, isn’t that big. I also witnessed people during breaks already violating their oaths they took earlier in the day! One case in which jury selection had begun before a break was about a “home invasion,” a VERY serious charge. One lady I overheard while standing in the hallway waiting to go back inside, without knowing any of the facts, said there was no way she was going to let someone off who was charged with such a crime—“no way!” She didn’t get picked or I would have told the Judge presiding over these cases what I had heard.
I wasn’t picked of course. A couple days later I spoke with the most experienced attorney picking a jury that day because we have a case together. After finishing my business with her about our case, I mentioned to her to please believe that as a citizen of the United States I am obligated to follow the law and would have based my decision on the facts after applying the law to those facts. I hope one day I’ll get to actually sit on a jury. But the odds are that just won’t happen. Oh well, I still learned a lot from the experience of merely summoned for jury duty, so I am grateful for that!

A very general article on jury duty can be seen at AVVO

What to do if you receive a jury summons.

Warning: this article is not specific to Florida.

Computer Crimes: Peer to Peer (P2P) Programs: Criminal Liability Lurks

Sun, 07 Oct 2012 13:53:10 -0600

This article is primarily about the peer to peer (P2P) viewing of child pornography over the internet. In today’s computer age child pornography prosecutions at both the State, including Florida, and Federal level have exploded in large part because of P2P downloading and uploading. It is quite possible for someone to sit in their living room and out of simple human curiosity look at photographs that if detected by law enforcement would result in them being imprisoned for many years. There are also those who are pedophiles with vast collections of child pornography who use P2P programs. The purpose of the article is not to judge who is or is not a pedophile or judge the reason why someone may look at illegal material. It is simply to inform those who use these programs of the extremely serious legal consequences for viewing such material through P2P program software.

Severe Criminal Consequences

Federal prosecutions have increased exponentially in the last five to ten years. Receipt of Child Pornography carries with it a five year minimum mandatory prison sentence to be followed by a period of supervised release or probation in addition to forever being labeled a sexual offender with all of the collateral consequences of such a designation. The base term of imprisonment level will increase tremendously based on the number of photos, the nature of the photo – in fact, in the criminal system the level will be increased if a computer is used! If the photo (or movie) has been “uploaded,” which is how all P2P programs operated, a charge of distribution may be filed which carries a five year minimum mandatory federal prison sentence. In Florida State Courts possession of each photograph that fits the definition of child pornography carries with it a five year maximum prison sentence. So if a person uses a search query like “girls having sex,” and allows the program to download photos or movies that may include those identifying words, and lets the program work overnight, by the morning they probably will have downloaded thousands of illegal images of underage children engaged in sexual activity. This can be the situation even if the person’s intent was to only download adult material. There are a very limited number of defenses to these crimes.
Law enforcement, at both the State and Federal levels, and often times working as TASK forces together, will focus on a particular movie and, using their software find every computer through the user’s IP address that downloaded the material and then obtain the individuals records from the Internet Provider giving them the name and address of the person in whose home the computer is located that downloaded the illegal materials. This information forms the probable cause for a judge to authorize a search warrant of the person’s home that enables law enforcement to then execute and generally seize all computers, cameras, flash drives, CDs, lap tops, I pads, or Smart phones. Subsequently, law enforcement does a forensic evaluation to determine the extent of the person’s involvement with child pornography.
Many people cooperate with law enforcement and provide a full statement at the time of the seizure not fully realizing that possession of such materials will, in many cases, result in a lengthy prison sentence and forever being labeled a sexual offender. Furthermore, both in Florida and the Federal Systems, penalties for possession, receipt and/or distribution of child pornography has more than quadrupled in the last ten years. It is not uncommon today to see a person who has a successful career, is a community leader, has little or no prior criminal history, and had never in any manner abused a child receive a fifteen to twenty year sentence!

More Public Awareness is Needed

I have no doubt that if the public were more aware of the consequences of downloading material that, but for the computer, they would never look at, the number of child pornography prosecutions would decline tremendously. Many people look at illegal material for the same reasons why we, as human beings, slow down to look at a car wreck, out of curiosity or an obsessive/compulsive driven need. Most psychologists agree that people who merely look at child pornography on the internet do NOT act out and are not pedophiles. However, this article is not designed to explain why such people may look at or collect such materials and I am certainly not qualified to diagnose someone’s motivation for doing so.
My advice to people is not to use these programs in any manner, even for downloading music, which in itself may be theft or copyright infringement.

Florida Supreme Court rules no knowledge of drugs for Conviction required

Sat, 14 Jul 2012 18:11:32 -0600

The Florida State Supreme Court, on July 12, 2012, in a 5-2 ruling, in State v. Adkins upheld a 2002 law which puts the burden of proof on defendants to prove that the citizen defendant did not have knowledge what was in the container or package, etc. they were carrying contained illicit narcotics. Florida is the only state in the country that does not require the prosecution prove that defendant citizen knew the substances they were carrying were illegal.

The Florida Supreme Court held that by the legislature enacting Florida Statute §893.101, the Legislature eliminated from the definitions of the offenses in chapter 893, Florida’s Drug Statute, the element that a person must have knowledge of the illicit nature of the controlled substance. The legislature created the affirmative defense of lack of such knowledge.
This means that a defendant charged with the crime must prove he or she had no knowledge the substance was a narcotic.

The Court held that the statutory provisions do not violate any requirement of due process articulated by the Florida Supreme Court or the Supreme Court. "In the unusual circumstance where a person possesses a controlled substance inadvertently, establishing the affirmative defense available under section 893.101 will preclude the conviction of the defendant" the Florida Supreme Court stated.

The Florida Supreme Court’s decision is in response to a Federal Middle District of Court’s judges opinion ruled the entire Florida law was unconstitutional, calling it a significant departure from the notion that Defendant citizens are innocent until proven guilty.

Prosecutors must still prove that a defendant knew the drug was in their possession. "In the unusual circumstance where a person possesses a controlled substance inadvertently, establishing the affirmative defense available under (the law) will preclude the conviction of the defendant," Justice Canady wrote for the majority.

Albiet in the miniority of possession and drug cases, there are people that do not know what they are carrying on behalf of someone else contains nacartics. And if they are arrested, who is likely to come forth and tell law enforcement, "yes, those were my drugs, arrest me, you've got the wrong person?" What makes this holding particularly disturbing is Florida Minimmum Mandatory sentencing scheme for quanties of drugs for which the person had no intent to sell.

Pensacola and Florida Law Enforcement Need Warrant for GPS

Sun, 12 Feb 2012 10:30:04 -0600

In January 2012, the United States Supreme Court issued a ruling in United States v. Jones, that the police must obtain a warrant before attaching a GPS device to a person's car. The Court's ruling, which applies to Florida, Pensacola and every state and municipality in the USA, holds that a Global Positioning System can only be placed on a suspect's car to later establish probable cause and thus sufficient grounds to obtain a search warrant for a suspect's car or home. Five justices suggested that might be similarly necessary for prolonged surveillance through smart phones or other devices with GPS capabilities. This type of GPS monitoring has, up until now, often been used in drug and narcotic cases to track suspect's whereabouts without the use of a team of agents trailing a person.

Law enforcement had, unbeknownst to Mr. Jones and without a warrant, attached a GPS tracking device to the car that Antoine Jones was driving. Mr. Jones, who owned a nightclub in Washington, D.C., was surveilled through a satellite system and Agents used his "travels' to various areas and homes, etc. to obtain a search warrant that ultimately led to a conviction in federal court on conspiracy to distribute a controlled substance, an offense that carries with it at least a ten year minimum mandatory sentence.

Justice Scalia, one of the most conservative justices on the Court, wrote the majority opinion and found the "the government's physical intrusion on the Jeep (by placing the GPS device on the car he was driving) to obtain information constitutes a search."
The highest court in the land basically found that the Fourth Amendment which protects all of us against unreasonable search and seizures by law enforcement must continue to protect us against government intrusions even in the face of modern technological surveillance tools.

An exellent article written by Duke University Third Year law strudent, Edward Boeme, Warrantless GPS in U.S. v. Jones: Is 2011 the New 1984? in the Duke Journal of Constiutional Law & Public Policy Sidebar, Vol. 7, 2011. Mr. Boeme wrote this piece prior to the U.S. Supreme Court in Jones handed down it's decision finding that when the police placed the GPS tracking device on the car Mr. Jones was driving, doing so effected a "seizure" for Fourth Amednment purposes. Mr. Boeme analyses the Fourth Amendment law surrounding this issue citing cases from both the government's perspective and the citizen's right to be free from unreasonable search and seizure and provides fascinating intricate details about the specific facts of the Jones case.

Keep in mind that the attachment of a GPS device, as discussed above, only applies when law enforcement attaches such a device. Albeit I do not practice family law I have heard of and seen advertisements for sale to the general public that sell GPS tracking devices for private citizens. The Jones case only applies to government behavior, not the behavior of private citizens. See your family law attorney for question surrounding this issue.

For other articles on Search and Search please see either the Article section or previous shorter articles written by Jim Jenkins contained in his blog dealing with substantive matters of criminal law.

Hearsay Statements offered to Explain Subsequent Conduct

Sun, 22 Jan 2012 15:37:03 -0600

In Walker v. State, the Florida Second District Court of Appeals issued an opinion on January 20, 2012, reversing a conviction in a case involving very serious charges because the trial court had allowed the prosecution to admit "hearsay" statements pertaining to why law enforcement officers developed Mr. Walker as a suspect. Hearsay is definined in Florida as an out of court statement offered in court for the truth of the matter asserted. There are certain exceptions that allows hearsay to be admitted such as when a statement is made spontaneously or in an excited fashion. The policy for allowing hearsay is determined by whether the statement is made under circumstances where it is reliable. On the other hand, the reason why it is generally not admissible is because it gives the accused no opportunity to confront the witness making the statement in violation of confrontation clause of the U.S. Constitution. To not allow someone accused to cross exam the witness making the statement, the accused would not have the ability to challenge the credibility or motivation of the witness for the statement.

The Florida appeals court held specificially: “[I]t is impermissible for the State to have the benefit of statements from mystery witnesses or sources without the defendant having the right of confrontation and cross-examination.” Keen v. State, 775 So. 2d 263, 273 (Fla. 2000). To come within this rule, the testifying witness need not repeat the exact statements of the mystery witnesses or sources but need only give testimony from which such statements may be inferred. Wilding v. State, 674 So. 2d 114, 119 (Fla. 1996). Where the inference from a statement of a mystery witness is that the witness has furnished evidence of the defendant's guilt, the testimony is hearsay and violates the defendant's right of confrontation. Id.

The Florida Supreme Court has rejected the argument that such statements are admissible to explain the police investigation or to establish a sequence of events. Keen, 775 So. 2d at 271. “ ‘[T]he prejudice of out-of-court statements used to relate accusatory information but offered simply to establish the logical sequence of events outweighs the probative value of such evidence, rendering it inadmissible.' ” Id. (quoting Caruso v. State, 645 So. 2d 389, 395 (Fla. 1994)).

See the web site of attorney Jim Jenkins for further information on trial law.

Unanimous Verdicts in Florida State Courts Required

Sat, 10 Sep 2011 05:54:25 -0600

In Florida, and every state in America other than Louisiana and Oregon, in order for the government to convict someone of a crime it must be by a unanimous verdict. What this means in Pensacola or other Florida criminal courts is that all six jurors must be unanimous in their verdict. In Florida criminal courts, only Defendant’s charged with first degree murder are entitled to twelve member juries. There is case law that supports if one of the twelve in a murder case, or one of the six in a non-murder case, becomes for any reason incapable of serving as a jury on the case once the trial has begun, a stipulation between the parties may allow the trial to proceed with a verdict based upon the smaller number of jurors. This rarely occurs because in most cases alternate jurors are selected at the beginning of the trial for the very reason if one of the jurors becomes incapable of serving the alternate will then fill the missing juror's place. People are not told who are or who not alternate jurors are so that all the jurors will pay close attention to the evidence during the trial. However, in Florida, even if less than six or twelve are allowed to reach a verdict, the verdict must be unanimous. In all federal courts, which require twelve member juries is all criminal cases, the verdict must be unanimous. If the defendant in a criminal case chooses, and he or she initiates the waiver, a Florida jury may return a binding less than unanimous verdict. Flanning v. State, 597 So. 2d 864 (Fla. 3rd DCA 1992). (Why on God's green earth a defendant would ever do this, I don't know. I guess an exceptional situation may exist where the defendant feels confident that the majority of jurors are going to find him not guilty; however, in my opinion, at the very least, this "assumption" would have to carefully weighed agaist whether the prosecution would re-try the defendant).

This is not the case in the States of Louisiana and Oregon. In those states, an 11-1 or 10-2, will result in conviction of a criminal defendant. These two state’s non-unanimous verdict requirements were recently "denied review" by the U. S. Supreme Court in Troy Barbour v. State of Louisiana. More practically speaking, Mr. Barbour had requested that the U.S. Supreme Court review the Louisiana state court jury system and mandate it to require unanimous jury verdicts in all criminal cases. This positiion was even supported by "The American Bar Association," generally known as a somewhat conservative organization. The ABA stated in its amicus curie brief that research has shown that non-unanimous jury verdicts in criminal trials “fail to foster thorough jury deliberation, attention to minority viewpoints or community confidence in jury verdicts.” In its brief, the ABA requests that the court conclude that criminal defendants in state jury trials should have the same right to a unanimous jury verdict as criminal defendants in federal jury trials. The U.S. Supreme Court chose to not even hear the Louisiana case therefore the law remains in Louisiana and Oregon that citizens can be convicted by a less than unanimous jury verdict in criminal cases.

In America, if a jury fails to reach a verdict, which is known as a “hung” or “dead-locked” jury, the State or Federal government has the option of re-trying the defendant. How long a jury deliberates before it is declared “hung” or “dead-locked” is a matter within the discretion of the trial court judge in the State of Florida. Florida Rule of Criminal Procedure 3.560.

Entrapment Defenses in the Pensacola Operation "Blue Shephard"

Thu, 30 Jun 2011 21:27:33 -0600

June 28, 2011

The recent Pensacola Floirda "sting" case dubbed "Operation Blue Shephard" involving primarily young men soliciting through computer communications with undercover law enforcements officers posing as the parents suggesting these young men have sexual relations with their own 12-14 year old children raises significant issues in the way police catch otherwise law-abiding citizens by manufacturing a crime. All of these issues will not be discussed in this forum with cases currently pending. However, some basic issues are discussed below that may apply to some of these cases. There are two types of entrapment; however, again this articles primary purpose is to merely inform the reader of the basics of such a defense.

Entrapment requires that 1) the government induce the individual to commit the crime, and 2) the individual was not predisposed to commit the crime before the government’s involvement. If the individual can prove inducement, burden shifts to the prosecution to prove beyond a reasonable doubt that the defendant was predisposed to commit the crime. United States v. Demarest , 570 F. 3d. 1232, 1240 (11th Circuit) 2009.

If the government induces someone to respond to their ads followed by very cleverly worded language in emails that induces someone to travel to a location to take part in an illicit transaction the issue of "entrapment" may become a factor. However, regarding predisposition, the Supreme Court of the U.S. has observed that law enforcement may not “implant in the mind of a person the disposition to commit the alleged offense and induce its commission in order that they may prosecute”. Jacobson v. United States 503 U.S. 540, 533 (1992). However, under Jacobson the defense will not succeed when the evidence shows that the government merely provided the individual an opportunity to commit a crime because in such cases the entrapment defense is of little use because the ready commission of the crime amply demonstrates the defendant’s predisposition to commit the crime.

Predisposition is a “fact specific inquiry” and must be decided on a case by case basis. The principles to be considered are:
1. A predisposition finding as supported by the individual’s post-arrest statements and evidence that the individual failed to take opportunities to back out of the transaction;
2. Evidence of prior-related offenses are relevant but not dispositive;
3. Evidence of pertinent legal activity and non-criminal activities will not standing alone support a conviction.

The point of this brief article is that people in Pensacola and throughout Florida in general should remember that an individual is presumed innocent until the prosecution proves, in this type of case, beyond a reasonable doubt that the individual they solicited to commit a manufactured crime was predisposed to commit the crime.

If it were your loved one who had been charged in this case I would hope that you would want the constitutional principles that have protected our citizenry since our nation's inception: that an individual is presumed to be innocent of a crime, the burden of proof is entirely on the government and that the government must prove an individual’s guilt beyond a reasonable doubt before they are subject to going to the penitentiary or being convicted of a crime.

There is much more to the story in many of these cases than what the print or television meida presents to the general public. It is only after a thorough investigtion is conducted into the facts of any case and those facts are presented to citizens who evaluate that evidence and apply the law to that evidence can it be determined if someone is guilty or not guilty. It is a road much less traveled for most of us to withhold judgment after reading sensationalist media reports that only report what, in most cases, is what information law enforcement has released to the media. In the pending prosecution of the Dominique Strauss-Kahn case alleging the potential French President of sexual assault of a hotel maid, from reading the articles, how many of us presumed to be innocent? With the maid's revelations over the telephone to her friend in prison on drugs charges, who had deposited over $100,000.00 into her bank accounts, ‘[D]on’t worry, this guy has a lot of money. I know what I’m doing," is an illustration that initial reports of the media don't tell all the facts.

Florida Supreme Court Limits Canine Search of Automobiles

Fri, 20 May 2011 20:06:43 -0600

On April 21, 2011 the Florida Supreme Court made it more difficult for law enforcement to use a drug detection dog’s “alert” to a vehicle to provide officers “probable cause” to search a car without a warrant. In Clayton Harris vs. State, Florida Supreme Court Case No. SC08-1871 (April 21, 2011) the Court provided a uniform standard statewide in Florida of what the government must prove at a Motion to Suppress the warrantless search of an automobile or person to establish to a trial court that a canine drug sniffing dog is reliable and can thus provide probable cause the warrantless search.

Prior to this decision, in three of the five Florida Districts, including the First Judicial District in which Pensacola, Milton, Shalimar, Defuniak Springs and Destin are located, all that was necessary for the prosecution to prove about the reliability of a dog’s alert was to admit into evidence at a contested motion to suppress hearing that the canine officer had been properly trained to handle the drug sniffing dog and that the dog had received certification to detect certain narcotics. The fact or issue of how many times the dog had alerted falsely had not been a relevant element that the prosecution to prove. In other words, the government had no burden to introduce evidence of the dog’s reliability in the field. In essence, this leaves the Florida motorist subject to the whims of a law enforcement officer merely claiming that his or her dog alerted to the car.

The Florida Supreme Court overruled the decisions in the First, Fourth and Fifth Districts that only required these minimum standards. Now in Florida if the warrantless search of an automobile is performed based upon probable cause provided by a dog alert, the prosecution has the burden to prove by written documentation not only the fact that the dog has been trained and certified to search the interior of the vehicle and the person but that the field performance history of the dog must be proven by the prosecution by admission of this information into the record at the hearing. The Florida Supreme Court stated the following in its holding:
In the absence of a uniform standard, the reliability of the dog cannot be established by demonstrating only that a canine is trained and certified. "[S]imply characterizing a dog as "trained` and "certified` imparts scant information about what the dog has been conditioned to do or not to do, or how successfully. . . . to adopt the view of the First, Fourth, and Fifth Districts would be to place the burden on the defendant to uncover all records and evidence that might challenge a presumption of reliability—evidence that is exclusively within the control of law enforcement authorities and, further, evidence that law enforcement agencies may choose not to record, such as in this case. Placing this burden on the defendant is contrary to the well-established proposition that the burden is on the State to establish probable cause for a warrantless search. See Doctor, 596 So. 2d at 445. Because the State must establish that the officer has a reasonable basis for believing that his or her dog is reliable in order to prove probable cause based on the dog`s alert, the State carries the burden of presenting the necessary records and evidence for the trial court to consider in adequately evaluating the dog`s reliability.”

Search and Seizure at Airports - Pensacola, Florida, National

Thu, 23 Dec 2010 04:50:45 -0600

The Florida First District Court of Appeals on Tuesday, December 21, 2010 gave us some insight as to their interpretation of the Transportation Security Administration's (TSA) authority to search our luggage at airports in Florida. (Higerd v. State, 1st District. Case No. 1D09-4028. December 21, 2010). The First District Court of Appeals reviews trial court decisions from Pensacola, including, but not limited to, Escambia, Santa Rosa, Okaloosa and Walton counties. This is a case of "first impression" in Florida meaning that the issue in this case had not been decided by any appellate court in Florida including the Florida Supreme Court. Unlike many issues that arise in the search and seizure context under the Fourth Amendment even the United States Supreme Court has not directly ruled on reasonableness of domestic airport checkpoint searches. See United States v. Fofana, 620 F. Supp. 2d 857, 861-62 n.2 (S.D. Ohio 2009).

Mr. Higerd had checked a suitcase which contained an expanding type folder that contained ten photographs of alleged child pornography at Pensacola Regional Airport. After he had checked his luggage at the ticket counter, he passed through the personal security checkpoints with his carry-ons, including his laptop, and walked to the gate where his flight was departing. Unbeknownst to him, TSA, in accordance with federal TSA policy and procedure, preselects a random number of checked bags they must search for firearms or explosives. (There are several other issues analyzed in this case that are too detailed to include in this brief article).

Mr. Higerd's bag was the next randomly selected bag and as a TSA officer was required to thumb through the contents of the accordion-type file folder found in Appellant's bag under TSA protocol. She testified she was merely running the swab through the papers in the folder when she came upon ten photos depicting child pornography. She immediately stopped the search and contacted a supervisor. “The mere fact that a screening procedure ultimately reveals contraband other than weapons or explosives does not render it unreasonable, post facto.” United States v. Marquez, 410 F.3d 612, 617 (9th Cir. 2005)."

Unlike the officers in Fofana and McCarty, the TSA officer's testimony here did not hint that she was intentionally looking for evidence of criminal behavior" the First District Court of Appeals stated. A TSA agent can NOT randomly go looking for evidence of criminal behavior; however, while looking for evidence of explosives or firearms in good faith, if they should see evidence of a crime they seize it and subsequently arrest the owner of the bad that contained the contraband. (In good faith means that they are not merely looking for evidence of crime; their search authority is limited to looking for explosives and firearms).

Federal Court Rules Emails Protected Under 4th Amendment

Thu, 16 Dec 2010 00:05:44 -0600

On December 14, 2010, in United States v. Warshak, the Sixth Circuit U.S. Court of Appeals held that government agents violated the defendant’s Fourth Amendment rights when they seized his stored emails without a warrant, pursuant to an outdated law, the Stored Communications Act of 1986 (SCA). “An Internet subscriber enjoys a reasonable expectation of privacy in the contents of emails that are stored with, or sent or received through, a commercial Internet Service Provider,” the court said.

Warshak is an interesting appellate opinion stemming from a multi-defendant trial in the Southern District Court of Ohio federal district court. The case involved multiple defendants who had varied interests in the company that sold the widely advertised product Enzyte, an herbal supplement first marketed by
Berkeley Premium Nutraceauticals alleging to increase the size of a man's erection. The company changed it's advertising approach in 2009 to represent the product as a as a "male enhancement" that assists in erectile dysfunction. The defendants were charged with 112 counts including conspiracy to commit mail fraud, wire fraud and money laundering. The jury found that the government's evidence presented proved that representations made by the company were based upon fictitious doctors and bogus studies. According to the opinion, the company profited over $500 million dollars.

The import of the case is that the federal appellate court found that we have, in almost all cases, a Fourth Amendment protection against seizures and searches of our emails because we have a reasonable expectation of privacy in emails even though they are transmitted to the intended recipient through internet service providers. (We generally do not have a reasonable expectation of privacy and 4th amendment protection to communications made when a third party is present). The court equated emails to regular U.S. mail in that both forms of communication are handled or stored by entities other than the individual to whom our communication is directed. Just like our communications through the U.S. Mail, the government does not have the authority to order the U.S. Postal service to open our mail without probable cause or without obtaining a search warrant. In Warshak the government ordered the Internet Service Provider to store all of Warshak's emails. Then, at some point, they obtained 27,000 emails from the ISP and found very incriminating information contained in some of his personal emails.

Florida Search And Search Law -- Automobile

Sat, 11 Dec 2010 08:24:13 -0600

In a very recent Florida appellate case, a line was drawn between when a citizen suspected of possession of controlled substance is merely cooperating with law enforcement or if he or she becomes a agent of law enforcement that could result in the suppression of evidence the "agent" of law enforcement obtains from another individual. (This case involves juveniles so initials are used rather than names in accordance with Florida law).

In State v. C.D.M., 35 Fla. Law Weekly D2581, Case No. 2D09-4236, November 24, 2010, an officer had stopped two juveniles in a vehicle for a traffic violation. The officer smelled marijuana and asked the driver, C.C. to step out of the car. The officer told the juvenile driver, C.C., that he could smell the marijuana and things might go better for him if he cooperated and gave the officer any marijuana that might be in the car. C.C. decided to cooperate and went back to the car and asked his juvenile companion, C.D. M. to give him the marijuana, which C.D.M. did. C.C. testified at the motion to suppress hearing that he felt he had no choice but to comply with the officer's request. (If CC was an agent of law enforcement C.D.M.'s consent to provide the marijuana to C.C. would have been found to be a coercive, involuntary consent).

The trial court suppressed the marijuana evidence against C.D.M. holding that C.C. had acted as an "agent" of the police when C.C. went back to the car and obtained the marijuana from C.D.M. and thus C.D.M.'s consent was involuntary.

The Florida appellate court said the trial court was wrong in it's holding. That merely because C.C. said he felt he had no choice but to oblige the officer, he was not acting as an "agent" of the officer because the officer had no idea that C.C. himself was not going to retrieve the marijuana the car nor did the officer think that C.D.M. was holding the marijuana. See Coolidge v. New Hampshire, 403 U.S. 443, 448, (1971)(even if a citizen feels obliged to assist law enforcement, it is not part of the policy underlying the 4th and 14th Amendment to discourage citizens from aiding law enforcement in apprehending criminals).

Both juveniles were ultimately charged with possessing marijuana. The appellate court found that merely because the officer asked CC to obtain the marijuana from the car CC was not acting as an agent of law enforcement and the marijuana charge alleged against C.D.M. was valid.

To read other search and seizure articles please see other articles in this blog or the published article section of the Law Offices of M. James Jenkins, P.A.