South Florida Criminal Lawyers Blog

N.S.A. Surveillance Underscores Need For a Revitalized Approach to Fourth Amendment

Fri, 14 Jun 2013 16:31:19 -0500

"The very word 'secrecy' is repugnant in a free and open society; and we are as a people inherently and historically opposed to secret societies, to secret oaths and to secret proceedings. We decided long ago that the dangers of excessive and unwarranted concealment of pertinent facts far outweighed the dangers which are cited to justify it."--John F. Kennedy, April 21, 1961

Last week, the Guardian and Washington Post newspapers revealed--with the help of Edward Snowden--the existence of two secret N.S.A. programs designed to surveil internet and telephonic traffic in the United States. While the reports regarding the internet surveillance program, code named PRISM, are somewhat contradictory (the Post and Glenn Greenwald have reported that the Government is collecting data "directly" from the "servers" of American internet companies, such as Google and Yahoo!, while the internet companies have largely disputed this very important detail), there is no mistaking the import of the court order providing the N.S.A. access to "telephony metadata" from all users of the Verizon network: the Government is collecting massive amounts of information about millions of American citizens, without an individualized showing of suspicion, and without anyone outside the federal government knowing about it.

Much of the media response to these stories--particularly as they pertain to PRISM--has been reminiscent of Ed Helms in the Hangover.

This overreaction was probably driven by Glenn Greenwald's activist, hyperbolic "reporting." Those familiar with Greenwald's schtick shouldn't be surprised to learn that his initial story on PRISM was based upon an "Epic Botch," in which he misled his readers as to the nature of the program.

However, while much of the media's focus has been on the PRISM program, the far more interesting story relates to the N.S.A.'s collection of "telephony metadata" from the Verizon Network.

In response to last year's Supreme Court holding in United States v. Jones, in which the Court failed to address the question of whether prolonged GPS tracking violates an individual's reasonable expectation of privacy, I wrote: [With] the advent of data-mining, it is not far-fetched to imagine the federal government capable of collecting massive amounts of data on individuals, which could reveal an individual's personal secrets.

Now we learn that the federal government, relying on the Business Records section of the Foreign Intelligence Surveillance Act (FISA), has convinced a federal judge to order Verizon to hand over: "comprehensive communications routing information, including but not limited to session identifying information (e.g., originating and terminating telphone number, International Mobile Subscriber Identity {IMSI} number, International Mobile station Equipment Identity {IMEI} number, etc.), trunk identifier, telephone calling card numbers, and time and duration" of every domestic telephone call made on the Verizon network.

Presumably, the government argued that the data-set from every domestic telephone call made on the Verizon Network was a "tangible thing" that was "relevant to an authorized investigation" under FISA. At the risk of sounding like a callous government apologist, it is important to note that (1) under FISA, the government is required to implement "minimization procedures," which protect against the unwarranted and unneeded collection of information from Americans; (2) the government is not using the metadata to identify any individuals by name; and (3) the information the government is collecting is information that Verizon customers are already sharing with a third-party: Verizon. What's more, under current Fourth Amendment precedent, individuals do not have a "reasonable expectation of privacy" in information shared with a third party. See, Smith v. Maryland, 442 US 735 (1979).

However, despite "minimization procedures" and current (and arguably outdated) Supreme Court precedent, the problem is rather obvious. The government is secretly applying for a secret court order in a secret court for secret reasons, and the secret court is applying a secret interpretation of the law...secretly! What's more, whatever real benefits this secret legal regime provides are...secret!

Furthermore, this metadata collection underscores an important point Justice Sotomayor made in her concurring opinion in Jones: "More fundamentally, it may be necessary to reconsider the premise that an individual has no reasonable expectation of privacy in information voluntarily disclosed to third parties. This approach is ill suited to the digital age, in which people reveal a great deal of information about themselves to third parties in the course of carrying out mundane tasks. People disclose the phone numbers that they dial or text to their cellular providers; the URLs that they visit and the e-mail addresses with which they correspond to their Internet service providers; and the books, groceries, and medications they purchase to online retailers...I for one doubt that people would accept without complaint the warrantless disclosure to the Government of a list of every Web site they had visited in the last week, or month, or year. But whatever the societal expectations, they can attain constitutionally protected status only if our Fourth Amendment jurisprudence ceases to treat secrecy as a prerequisite for privacy. I would not assume that all information voluntarily disclosed to some member of the public for a limited purpose is, for that reason alone, disentitled to Fourth Amendment protection."

Nail, meet hammer.

The Supreme Court's Holding in KING v. MARYLAND: Welcome to Gattaca?

Thu, 13 Jun 2013 15:41:45 -0500

As promised, I'd like to address the Supreme Court's controversial holding in King v. Maryland. Truth be told, the analysis is rather straightforward and ho-hum. Unlike the Court's holding in United States v. Jones, which turned-back-the-clock on Fourth Amendment analysis, the Court's holding in King applies a traditional, noncontroversial analysis. The Court restates its earlier assertion in Illinois v. McArthur: "when faced with special law enforcement needs, diminished expectations of privacy, minimal intrusions, or the like, the Court has found that certain general, or individual, circumstances may render a warrantless search or seizure reasonable." The Court then explains that (1) a buccal swab for DNA is a minimally intrusive search; and (2) upon the arrest of individuals for a "serious crime," law enforcement officers collect buccal swabs for a special purpose: identifying arrestees.

If only the Court was correct that the police collect DNA to "identify" arrestees. If that were the case, the collection of DNA upon arrest would be little different than the collection of fingerprints or the taking of booking photos. However, as Justice Scalia points out in his dissent, the police do not collect DNA to identify arrestees; they collect DNA for the sole purpose of solving unsolved crime. Solving crime is most definitely not a "special need" of law enforcement; it is the entire purpose of law enforcement. If the need to solve unsolved crimes justifies an exception to the warrant requirement of the Fourth Amendment, there is no longer a purpose to the Fourth Amendment. The Court understands this, which is why the Court adopts the fictitious notion that DNA is collected for "identification."

It is true, of course, that arrestees have a diminished expectation of privacy and that this affirmed policy of DNA collection only applies to arrestees of "serious crimes." We're not living in Gattaca yet!

However, as Justice Scalia points out in his dissent, the fact that this policy only affects those arrested for "serious crime" is somewhat misleading. It is already the practice in all 50 states to collect DNA swabs of all individuals convicted of a felony offense. Thus, those individuals guilty of committing a "serious crime" were already required to give up their DNA, prior to the Court's holding in King. The only individuals who will be affected by this holding, therefore, are individuals who were arrested, but not convicted. That's right: the Court has gone out of its way to adopt a position that law enforcement may collect DNA from individuals who were either: (a) wrongfully arrested; (b) were arrested without enough evidence to convince a jury beyond a reasonable doubt that the charged crime was committed; or who (c) negotiated and/or litigated a resolution, resulting in something less than a conviction.

This leads to an interesting potential problem. Prior to the adoption of a policy of collecting DNA samples from all individuals arrested for "serious crime," DNA profiles were uploaded into CODIS only when: (1) a DNA sample was collected pursuant to a DNA swab after conviction of a felony offense; (2) a DNA sample was collected pursuant to a lawful warrant, or the consent of the individual swabbed; or (3) when a DNA sample was collected from the scene of a crime. Thus, prior to this new policy, when investigators received a "CODIS hit" indicating that a known DNA sample matched to an unknown DNA sample collected from a crime scene, there wasn't much avenue to litigate the basis of the initial "CODIS hit," because the source of the known DNA sample was only collected pursuant to a fairly controlled process.

However, now that law enforcement may collect DNA samples upon arrest and upload the samples into CODIS, there is a far greater likelihood that some DNA samples will make their way into CODIS based upon unlawful arrests. This poses quite a problem. Typically, after receiving a "CODIS hit," law enforcement will receive a warrant to collect a new DNA swab of the defendant, which they will then compare to the DNA sample taken from the crime scene, to confirm the "CODIS hit." The prosecution of the case will hinge upon the second, controlled DNA test. The warrant to collect the DNA for this second test is based upon the probable cause generated by the initial "CODIS hit." However, if the initial "CODIS hit" is the result of a DNA swab that was collected pursuant to an unlawful arrest in violation of the 4th Amendment, then any subsequent investigation based upon that "CODIS hit" is tainted.

This potential problem will certainly add to the complexity of some criminal litigation. For instance, it is conceivable that an individual wrongfully arrested in Chicago, Illinois will generate a "CODIS hit" for a crime committed in Boca Raton, Florida. The litigation in Palm Beach County will partly depend upon the validity of police conduct in Cook County, Illinois, and would conceivably require Palm Beach County prosecutors to fly-in out of state law enforcement officers to testify in a suppression hearing.

What's more, the already back-logged CODIS system will now have to bear the burden of analyzing what is sure to be an influx of millions of new DNA samples. This will undoubtedly result in delays in receiving bonafide "CODIS hits."

ANTONIN SCALIA'S DISSENT IN KING V. MARYLAND IS AWESOME

Wed, 05 Jun 2013 15:21:13 -0500

Justice Scalia is no doubt a controversial jurist. He is the bane of the American left-wing on numerous hot-topic legal questions, particularly as they relate to abortion, the Establishment and Free Exercise clauses of the First Amendment, and the Second Amendment. What's more, based upon his statements in oral argument, he is likely to run afoul of left-leaning Americans on the issue of same-sex marriage, which the Court will address later this summer. However, as anyone who watches the closely divided Court on a regular basis already knows, those hot-topic cases are not the general rule. Often, the Court hands down opinions with outcomes that don't closely reflect the partisan divide America is accustomed to. This week, Justice Scalia employed his famously incisive wit and logic in a scathing dissent in King v. Maryland, in which Justice Scalia was joined by three traditionally liberal jurists: Justices Ginsburg, Sotomayor, and Kagan.

Of course, I will follow-up this post with a discussion of Justice Kennedy's majority opinion, which was joined by Justices Roberts, Thomas, Breyer, and Alito. The Court held that the police may collect DNA samples from individuals arrested for "serious crimes," prior to conviction, without a warrant and without suspicion. But before we discuss the majority's holding, I want to discuss the nerdy awesomeness of Justice Scalia's dissent. Let's break it down!

(1) Great Zingers

The dissent wonderfully illustrates the biting prose of Justice Scalia. In what is sure to be an instantly classic line, Justice Scalia writes: "But I doubt that the proud men who wrote the charter of our liberties would have been so eager to open their mouths for royal inspection." If Justice Scalia were delivering this line in person, I would absolutely expect a microphone drop.

The remainder of his opinion mirrors the tone and contempt of some of Justice Scalia's other classic dissents. For instance, one of my all-time favorite Scalia quips comes from his dissent in Roper v. Simons. In Roper, the Court held that there was a "national consensus" against executing individuals for crimes committed while the condemned was still a juvenile. Why did the Court feel there was a "national consensus" on this issue? The Court found a "national consensus" in the fact that 18 different death penalty States forbade executing an individual for a crime committed while the individual was a juvenile. In response, Justice Scalia wrote: "Words have no meaning if the views of less than 50% of death penalty States can constitute a national consensus."

Justice Scalia employed similar language in his dissent in King. For example, in response to Justice Kennedy's bizarre suggestion that the police identify arrested suspects by comparing their faces against Wanted Posters of previously unidentified suspects, Justice Scalia writes: "No minimally competent speaker of English would say, upon noticing a known arrestee's similarity 'to a wanted poster of a previously unidentified suspect,' that the arrestee had thereby been identified. It was the previously unidentified suspect who had been identified..." ZING!

Similarly, after painstakingly outlining why the Court's "identification theory" is non-sensical, Justice Scalia writes: "Against all of that, it is safe to say that if the Court's identification theory is not wrong, there is no such thing as error." Ba-ZING!

(2) Outrageously Sarcastic Footnote #6

Casual readers of Supreme Court opinions often skip the footnotes. However, the footnotes occasionally contain little easter eggs of hidden sarcasm or humor. Such is the case with Justice Scalia's footnote #6. Justice Scalia writes: "I therefore dissent, and hope that today's incursion upon the Fourth Amendment, like an earlier one[6], will some day be repudiated." The footnote after the words "like an earlier one," leads the reader to this little sarcastic citation:

"Compare, New York v. Belton, 453 U.S. 454 (1981) (suspicionless search of a car permitted upon arrest of the driver), with Arizona v. Gant, 556 U.S. 332 (2009) (on second thought, no)."

In the universe of parenthetical summaries of cited case-law in Supreme Court opinions, that sarcasm is outrageous! ZING!

(3) There Is A Visual Aid

Unfortunately, I don't know how to cut-and-paste this portion of the dissent to this blog post. Suffice it to say, Justice Scalia uses a graphic to help the reader visualize the Court's error. Awesome.

(4) Justice Scalia Uses the Word: "panopticon"

I think it is fair to say that Justice Scalia's dissent had a good number of people reaching for their dictionaries, after reading the sentence: "Perhaps the construction of such a genetic panopticon is wise." Panopticon?! I think I have a new favorite word!

It turns out that a panopticon is a circular architectural design for a prison, in which a central watch-station allows a watchman to observe a large number of inmates who are arranged in a circle around the watch-station, without the inmates' knowledge.

This design was the brainchild of the English utilitarian philosopher (and eccentric) Jeremy Bentham. This, of course, leads us to our 5th reason why Justice Scalia's dissent is awesome...

(5) Justice Scalia Subtly Calls Out the Majority Opinion as Utilitarian.

You know you've descended into the depths of legal nerdiness when you compare your opponent's legal argument with the 18th century philosophy of Jeremy Bentham. Justice Scalia does just that.

He writes: "If identifying someone means finding out what unsolved crimes he has committed, then identification is indistinguishable from the ordinary law-enforcement aims that have never been thought to justify a suspicionless search...I will therefore assume that the Court means that the DNA search at issue here was useful to 'identify' King in the normal sense of that word--in the sense that would identify the author of Introduction to the Principles of Morals and Legislation as Jeremy Bentham."

What? That's kind of a bizarre reference, isn't it? Coupled with his use of the word "panopticon," it seems rather obvious that Justice Scalia is trying to say something. What's he trying to say?

He's saying that the majority opinion is utilitarian in its approach. Zing!

Why is that a zinger? Well, utilitarianism is a philosophical/political theory, which roughly holds that government should act to promote the general happiness of the people. Thus, if an act hurts some people, but tends to promote the happiness of the majority, then the act is moral and good. As applied to this case, Justice Scalia seems to be suggesting that the Majority opinion is ignoring an obvious violation of the Fourth Amendment, because the violation serves the purpose of bringing criminals to justice. In other words, there is a real "utility" to the Fourth Amendment violation, and thus the Court is approving the violation of the Fourth Amendment. Sure, there is a harm to some people, but society benefits as a whole.

Obviously, such a utilitarian approach is antithetical to our constitutional system of individual rights.

In all seriousness, the Court's holding in King v. Maryland is quite an important decision, which will undoubtedly affect criminal litigation in Palm Beach County, Broward County, and Miami-Dade County. I will analyze the Court's holding in my next post.

FLORIDA GIRL ACCUSED OF SEX-CRIME FOR RELATIONSHIP WITH CLASSMATE

Wed, 22 May 2013 18:47:28 -0500

According to CBS 12, Kaitlyn Hunt, an 18-year-old Sebastian River High School student, is charged with two counts of "Lewd or Lascivious Battery" for a sexual relationship with her 14-year-old, female classmate. The story has gone viral over the internet. It is reported that the Assistant State Attorney handling the case has extended a plea offer, which calls for 2 years house arrest, sex offender treatment, and a potentially life-long sex offender label. Many in the public are concerned that the State is only prosecuting the case because the nature of the sexual relationship. According to Ms. Hunt, she and the alleged victim were engaged in a same-sex relationship.

As a former sex-crimes prosecutor in Palm Beach County, Florida, I quickly learned that prosecutorial discretion is of paramount importance when weighing a decision to file formal criminal charges, as well as when extending a plea offer. No situation does more to challenge our sex offender laws, than a scenario where the alleged defendant and the alleged victim are both high school classmates, engaged in a romantic relationship. When we think of sex offenders, we think of John Couey; we don't think of Jake Ryan from Sixteen Candles.

Due to the challenging scenario of teenage romance, the Florida legislature enacted the "Romeo and Juliet" law. Pursuant to this law, if Ms. Hunt were convicted, she would qualify for removal from the sex offender registry, if she were no more than 4 years older than the alleged victim at the time of the offense.

Under Florida Statute 943.04354, if a defendant convicted of "Lewd and Lascivious Battery," has (1) no prior convictions under Florida Statutes 794.011(Sexual Battery), 800.04 (Lewd and Lascivious), or 847.0135 (Computer Pornography/Traveling to Meet a Minor); and (2) the alleged victim was between the ages of 14-17; and (3) the defendant was not more than 4 years older than the alleged victim at the time of the offense; then the Defendant qualifies for removal from the sex offender registry. Additionally, the Federal Adam Walsh Act requires that only those individuals who engage in "consensual" acts may qualify for removal from a state registry, if the state wishes to receive a full federal grant, under the Edward Byrne Memorial Justice Assistance Grant Program.

Nevertheless, even if Ms. Hunt is not required to suffer the indignity and the ramifications of a sex offender label, she is nevertheless facing criminal prosecution for a sexual relationship with a high-school classmate. This is no small accusation.

The State is charging Ms. Hunt under Florida Statute 800.04(4)(a). To prove the crime of "Lewd and Lascivious Battery--Victim 12 years or older, but under 16," the State must prove the following elements beyond and to the exclusion of every reasonable doubt:

(1) The victim was 12 years of age or older, but under the age of 16 years.
(2) The defendant committed an act with the victim, in which either...
(a) the sexual organ of the victim (or of the defendant) penetrated or had union with
the anus, vagina, or mouth of the defendant (or of the victim); or
(b) the anus or vagina of the victim was penetrated by an object.

If Ms. Hunt is convicted at trial, she faces the possibility of a 15 year prison sentence. The crime is a "level 8" offense, which means that under Florida's sentencing guidelines, the "lowest permissible sentence" includes prison. However, a judge could still make a "downward departure" pursuant to Florida Statute 921.0026. This would spare Ms. Hunt prison if convicted at trial, provided that Ms. Hunt convinces the judge to depart for a legally justifiable reason.

Clearly, if Ms. Hunt provided an admissible statement to police, in which she admitted to penetrating or having union with the alleged victim's sexual organ, the State will have no trouble proving Ms. Hunt's guilt, under the law. However, based upon the nature of the relationship and the alleged criminal act, is it not appropriate for the prosecutor to apply some level of discretion? Just because a prosecutor can prove a crime, doesn't mean that a prosecutor needs to prove the crime. Florida Statute specifically provides prosecutors discretion for this very reason.

What's truly astounding, is that under Florida law, the alleged sexual acts between Ms. Hunt and the alleged victim, who are only 4 years apart in age, is prosecutable; but if a 16 year-old high school student were to have sexual intercourse with a 23 year-old teacher over the weekend, a prosecutor wouldn't be able to bring charges. You read that right. When two high school students engage in sexual relations, it is prosecutable if one of the students is under the age of 16. But if a 16 year-old high school student has sex with an individual 5 years older, it is not a crime.

Ultimately, the prosecutor should ask what purpose does the prosecution serve. Perhaps there is more to the story than reported; but even if there is, does the alleged criminal act in this case justify two years of house arrest, and a conviction of a sex offense on Ms. Hunt's record? Does an 18 year-old high schooler require sex offender treatment for sexual activity with another high school student? And if it turns out that Ms. Hunt was slightly more than 4 years older than the alleged victim (depending upon their specific dates of birth, it is possible that Ms. Hunt is 4 years, 1 month [or more] older than the alleged victim), is society truly rendered safer with Ms. Hunt carrying a potentially life-long sex offender label?

BOCA RATON CRIMINAL DEFENSE ROUND UP

Wed, 15 May 2013 18:48:45 -0500

Let's catch up on some of the news:

George Zimmerman has waived his right to a pre-trial "Stand Your Ground" hearing.

We've already discussed the legal strength of the "Stand Your Ground" defense in Mr. Zimmerman's case. He need only prove by a preponderance of the evidence that he acted justifiably, which is a far lower burden than that required by the State to prove Mr. Zimmerman's guilt. The State has little or no evidence to contradict Mr. Zimmerman's claim that he reasonably feared for his life and that Trayvon Martin initiated physical contact. The State is presumably alleging a theory of "provocation" that doesn't include initiating physical contact (as the State has no evidence--either direct or circumstantial--that Mr. Zimmerman initiated physical contact), which is totally unprecedented, and which contradicts the plain language of the statute. What's more, even if the State could convince the judge that Mr. Zimmerman "provoked" the confrontation, the State has no evidence to contradict the statutory exception, which allows an individual who "provokes" a conflict to justifiably use deadly force, if the provocateur reasonably fears for his life and has exhausted all means of escape.

However, we didn't discuss the litigation strategy of invoking a "Stand Your Ground" defense pre-trial, nor did we discuss the inherent political considerations that Mr. Zimmerman must make.

Typically, a defendant in the shoes of Mr. Zimmerman would jump at the opportunity to argue a "Stand Your Ground" motion pre-trial. However, due to the intense national interest in this case, Mr. Zimmerman must keep some political considerations in mind when deciding how to make his argument. The judge, while bound to follow the law, will naturally feel profound pressure to allow the case to go to a jury. Thus, despite the legal strength of Mr. Zimmerman's argument, there is a very real chance that the judge will rule against Mr. Zimmerman, so as to allow the jury to decide the issue of guilt.

Should the judge rule against Mr. Zimmerman pre-trial, the news media will vigorously report the ruling, which will inevitably taint the jury pool. Although the attorneys will do their best to find jurors who know as little about the case as possible, it is never a certainty whether a juror (or some jurors) know more about the case than they admit. It is, perhaps, too great a risk for Mr. Zimmerman to pick a jury from a jury pool that knows that a judge ruled against Mr. Zimmerman on the "Stand Your Ground" issue.

Mr. Zimmerman's attorney has suggested that he might contemplate arguing the "Stand Your Ground" motion during the trial, outside the presence of the jury. Presumably, Mr. Zimmerman will appear to the jury pool as wanting to have a jury decide his case, while secretly attempting to have the case dismissed without the jury's input. If Mr. Zimmerman loses the motion, the jury will not know of it. If Mr. Zimmerman wins the motion, the jury will be dismissed before deliberations.

Of course, this raises the question of whether it is permissible for Mr. Zimmerman to argue a "Stand Your Ground" motion during the course of the trial, as opposed to before the trial. It is not unheard of for attorneys to argue dispositive suppression motions during the course of a trial. However, this only occurs with the prior approval of the Court. More importantly, there is no precedent for arguing a "Stand Your Ground" motion during the course of a trial, which is certainly much different from a suppression motion.

The "Stand Your Ground" statute itself doesn't address the procedure of how a court is to consider a "Stand Your Ground" motion. In Dennis v. State, the Florida Supreme Court stated: "we conclude that the plain language of section 776.032 grants defendants a substantive right to assert immunity from prosecution and to avoid being subjected to trial." However, the Court did not confront the question of whether a defendant must assert a "Stand Your Ground" motion prior to the start of the trial.

Nevertheless, the Court did hold that the proper vehicle for asserting a "Stand Your Ground" claim is under Florida Rule of Criminal Procedure 3.190(b), as opposed to 3.190(c)(4). Rule 3.190(b) doesn't address when a motion must be filed. However, Rule 3.190(c) states:

"Unless the court grants further time, the defendant shall move to dismiss the indictment or information either before or at arraignment. The court in its discretion may permit the defendant to plead and thereafter file a motion to dismiss at a time to be set by the court. Except for objections based on fundamental grounds, every ground for a motion to dismiss that is not presented by a motion to dismiss within the time hereinabove provided shall be considered waived."

Clearly, although the proper vehicle for a "Stand Your Ground" motion is Rule 3.190(b), it is Rule 3.190(c) that governs the timeliness of the motion. Thus, if Mr. Zimmerman wants his motion heard during trial, he likely must seek the Court's permission, which he has not yet done. Rule 3.190(c)'s exception for "objections based on fundamental grounds," is a reference to objections based upon a law's unconstitutionality, and thus doesn't apply (See Potts v. State, 526 So.2d 104). Mr. Zimmerman cannot shoe-horn his argument into a 3.190(c)(4) motion, which can be heard at any time, because the State will simply traverse that there are material facts in dispute, requiring the Court to deny the motion. Mr. Zimmerman might shoe-horn his argument into a J.O.A. argument, but then he loses the burden advantage that a "Stand Your Ground" motion provides a defendant. In a J.O.A. argument, the Court must weigh all of the evidence in the light most favorable to the State.

MIAMI-DADE MARIJUANA CASE GOES TO THE SUPREME COURT OF THE UNITED STATES

After the United States Supreme Court handed down its ruling in United States v. Jones, I observed that the holding had "the potential to impact prosecutions in South Florida, as it provides an additional theory through which Florida defense attorneys may attempt to suppress evidence." Little did I know that the Court's very next 4th Amendment case to share in the Jones lineage would come from South Florida!

In Florida v. Jardines, the United States Supreme Court, in a 5-4 decision (Scalia, Thomas, Sotomayor, Kagan, Ginsburg) suppressed evidence in violation of the 4th Amendment, based upon the theory that law enforcement officers impermissibly trespassed upon the Defendant's property interests. This new case provides an important precedent through which Florida defense attorneys may challenge police searches and seizures.

The facts of the case are rather straightforward. Police officers, acting without a warrant, approached the defendant's home with a drug sniffing canine. As the dog approached the home, the dog alerted to its handler that it detected an odor of contraband. Based upon the alert, the officers received a search warrant for the home, seized marijuana, and charged the defendant.

The Court held that the police exceeded the implied license to approach the front door, because they approached the front door with a drug sniffing canine, with the intent of gathering incriminating evidence. The Court stated: "The scope of a license-- express or implied--is limited not only to a particular area but also to a specific purpose." While the Court acknowledged that a police officer may approach a home to conduct a "knock and talk," as that is something that any ordinary citizen may do, the Court stated: "introducing a trained police dog to explore the area around the home in hopes of discovering incriminating evidence is something else. There is no customary invitation to do that."

Justices Kagan wrote a concurring opinion, in which Justices Ginsburg and Sotomayor joined, in which Kagan stated that she also would have ruled that the canine sniff of the front door also violated a reasonable expectation of privacy. Justice Kagan analogized the facts of the case to a situation where a police officer approaches the front door of a home, and then peers into the home using "super-high-powered binoculars," which allow the officer to see intimate details of what is occurring in the home. Kagan wrote: "That case is this case in every way that matters. Here, police officers came to Joelis Jardines' door with a super-sensitive instrument, which they deployed to detect things inside that they could not perceive unassisted."

This analogy seems wrong. In the hypothetical, the police use binoculars to peer inside the home, and thus perceive "intimacies...sensibly thought protected from disclosure." But in this case, the police used a dog to sniff an odor of contraband wafting outside of the home, which did not allow the police to perceive any "intimacies...sensibly thought protected from disclosure." Surely that distinction is eminently relevant to "what matters" in the case, and whether any privacy rights were violated.

Justice Alito wrote a dissenting opinion, in which Justices Alito, Roberts, Kennedy, and Breyer joined. Alito argued that (1) no trespass occurred; and that (2) no "reasonable expectation of privacy" was violated. As to the former argument, Alito scathingly stated: "in the entire body of common-law decisions, the Court has not found a single case holding that a visitor to the front door of a home commits a trespass if the visitor is accompanied by a dog on a leash. On the contrary, the common law allowed even unleashed dogs to wander on private property without committing a trespass."

The dissent also observed: "The Court offers no meaningful way of distinguishing the 'objective purpose' of a 'knock and talk' from the 'objective purpose' of [the police] conduct here." This is an important observation. Under the majority's holding, if an officer were to approach a home with a drug sniffing canine, with the intent to "knock and talk," and the dog alerted prior to the officer reaching the door, the officer would be precluded from swearing out a probable cause affidavit in support of a warrant, based solely upon the dog's alert. However, what would happen if an officer were to approach a home without a drug sniffing canine, with the intent to "knock and talk," but before reaching the door, the officer smelled marijuana coming from the house? Would that serve as a proper basis for a search warrant, simply because there was no dog?

Ultimately, the Supreme Court's decision is an interesting case, which provides a Boca Raton criminal defense attorney a new avenue to challenge police searches.

Is South Florida a Constitution Free Zone?

Thu, 14 Mar 2013 12:06:16 -0500

In 2006, the ACLU issued a press release, asking: "Are You Living in a Constitution Free Zone?" According to the ACLU's logic, anyone residing within 100 miles of the international border is living within a "Constitution Free Zone," because the "extended border search" doctrine provides federal authorities--in limited circumstances--to conduct warrantless searches of individuals who have recently crossed the border. This old ACLU press release is receiving renewed interest across the inter webs, thanks to the Department of Homeland Security's recent publication of a "Civil Rights/Civil Liberties Impact Assessment" of federal border search procedures relating to the search and seizure of electronic devices at the U.S. border.

While there is certainly reason to doubt the legal conclusions of the Department of Homelands Security, the ACLU's claims that the entire state of Florida is a "constitution free zone" is absurd. The federal government is not claiming the right to conduct warrantless, suspicion-less searches of any person within 100 miles of the United States border.

To begin, it is important to recognize that it is a fundamental tenet of 4th Amendment jurisprudence that the government may conduct warrantless, suspicion-less searches at border crossings. See United States v. Ramsey, 431 U.S. 606 (1977). This exception does not negate the fact that everyone within the United States is cloaked with the protections of the 4th Amendment. However, the Fourth Amendment's protections vary depending upon the circumstances. An individual's "reasonable expectation of privacy" is greatest when in the home; it diminishes when in public; it diminishes further when in certain locations, such as a jail or prison; and it is very diminished when crossing into, or out of, the country. Thus, the fact that the Department of Homeland Security is claiming the right to conduct warrantless, suspicion-less searches at border crossings is hardly unprecedented; and it hardly renders border crossings "Constitution Free Zones."

In addition to "border crossings," there is a doctrine that recognizes something called the "extended border." The "extended border" is the geographic territory within 100 miles of the United States border. In the "extended border," the government may conduct a warrantless search of an individual if 1) the government can show with a "high degree of probability" that a border was recently crossed; 2) the government can articulate with "reasonable certainty" that the item they want to search has not changed between the time of the border crossing and the time of the search; and 3) the government can articulate "reasonable suspicion of criminal wrongdoing" based upon the "totality of the circumstances."

It should therefore be obvious that the ACLU is inaccurate when it claims that the "extended border" is a "Constitution Free Zone." Not only does the 4th Amendment provide protection against suspicion-less searches in the "extended border," but all of the other constitutional guarantees afforded to individuals within the United States remain in effect in the "extended border." What is more, the "extended border" doctrine only applies if the individual has recently "crossed" the border.

It is important to note that the Department of Homeland Security does not make any mention whatsoever of "extended border searches" in its "Civil Rights/Civil Liberties Impact Assessment." This is because the document is focused on the more narrow issue of searching electronic devices at border crossings, where the government enjoys the right to conduct warrantless, suspicion-less searches.

The "Civil Liberties Assessment" is certainly dissatisfying in its brevity. It provides simple, conclusory statements, without much explanation. For instance, when discussing the duration of 4th Amendment searches at the border, the assessment states: "Current policies ensure reasonable efforts at promptness and, accordingly, we do not believe that setting specific time limits is necessary." However, the "ICE Directive on Border Searches of Electronic Devices," which is part of the assessment's review, states that ICE agents may "generally" take up to 30 calendar days to conduct a warrantless, suspicion-less search of a digital device! 30 days! Just as it is a fundamental tenet of 4th Amendment jurisprudence that the government may conduct warrantless, suspicion-less searches at the border, so too is it fundamental that any such search must remain reasonable in its duration and scope. It is troubling--and certainly dubious--for the government to claim the right to deprive an individual of property, for a month or more, without suspicion or a warrant. True, the 4th Amendment is flexible, and the "reasonableness" of the scope and duration of a search depends upon the context; but claiming that it is "generally" reasonable to take 30 days to conduct a non-suspicion search strikes the balance in the wrong direction, against individual liberty.

Also, considering that we are living in a digital revolution, in which individuals often travel with digital devices that contain an extraordinary amount of personal information, it seems as though there is no meaningful limit to the scope of these searches. To their credit, both ICE and CBP place some limits on their agents' ability to search business, health, and legal records on a digital device. However, there is undoubtedly a stronger constitutional limit that the courts need to define. While it has always been reasonable for the government to inspect incoming property without a warrant to determine that no contraband is entering the country, there has always been a limit to the scope of these searches. For instance, ICE and CBP cannot conduct invasive strip searches on every single person who crosses the border. Likewise, they shouldn't be able to strip through every byte of information on a hard drive.

So, although there are troubling implications regarding the potential duration and scope of these border searches, claims that the entire State of Florida is "Constitution-Free" are wildly off the mark.

Florida Firearm Statutes, the Second Amendment, and Mass Murder

Sun, 23 Dec 2012 10:55:36 -0500

Last week, 20 young children, in the prime of their innocence, were mercilessly cut down by a deranged gunman. In stark contrast to the Christmas season--a time of hope and joy--the unspeakable horror has wrought deep mourning and inconsolable grief. Upon hearing the news, parents hugged their children tighter; siblings held their brothers and sisters closer; and everyone sympathetically tried to imagine the unimaginable: the pain and suffering of the bereaved. Most also asked the simplest, yet most difficult of questions: "why?"

Those of us who operate in the criminal justice system are familiar with this question. Why do people do what they do? Every day, someone commits a crime that hurts another person; every day, someone falsely accuses another person of committing a crime that person didn't commit. Sometimes there are answers, though they are as unsatisfying as they are direct. It was drugs. It was money. It was jealousy. It was mental illness. Evil men do evil things; it is in their nature. In the case of the Newtown massacre, indications are that mental illness drove the gunman to open fire.

The next question, which now consumes the airwaves and editorials across the country, is perhaps more difficult still: what are we going to do about it? The question isn't only political; it is also a legal question. What we may want to do isn't necessarily what we may do, under the law. As the Supreme Court stated in Heller v. District of Columbia, "...the enshrinement of constitutional rights necessarily takes certain policy choices off the table." Thus, when discussing what measures may be taken to dampen the disturbing trend of mass murders in America, we must look to what laws already exist on the books, as well as to what legal limits exist when regulating the possession of firearms.

Obviously, there are policy choices beyond those that simply rely on gun-control. The role of mental illness is noticeably consistent among instances of mass murder. Early indications are that Adam Lanza, the perpetrator of last week's massacre, suffered from mental illness and was of the belief that his mother was going to commit him to a psyche ward. James Holmes, who murdered 12 people in Colorado last summer, also suffered from mental illness. So too did Jared Loughner, who killed 6 people in Tuscon, Arizona; and so too did Seung-Hui Cho, who killed 32 people at Virginia Tech. Certainly, the state of mental health services across the country is in serious need of reform. All too often, the mentally ill only receive treatment after committing a crime. For example, the single largest mental health institution in the State of Florida is the Miami-Dade County Jail.

However, whereas a focus on early diagnosis and treatment of mental illness will require a gargantuan effort and depend upon significant reform undertaken by 50 independent states, federal gun-control legislation provides a quick response to a complex issue. Thus, unsurprisingly, talk of gun-control legislation dominates the national discourse.

Before discussing the wisdom of proposed gun-control legislation, including a renewal of the so-called "Assault Weapons Ban," it is paramount to first establish the limits of the Second Amendment. Just last week, the 7th Circuit Court of Appeals struck down an Illinois gun-control statute that forbade the carrying of firearms outside of the home. Much of the 7th Circuit's analysis was informed by the United States Supreme Court's ruling in Heller, in which the Supreme Court established that the Second Amendment protects an individual and fundamental right to self-defense.

While the Court in Heller did not outline the precise limits of Second Amendment protection, it did establish some minimum guarantees.

First, the Court stated: "We start...with a strong presumption that the Second Amendment right is exercised individually and belongs to all Americans." The basis of the presumption that the Second Amendment protects an "individual right," as opposed to a "collective right," enjoyed only by a subset of individuals belonging to a militia, is the Second Amendment's use of the words: "the right of the people." In no constitutional context does reference to "the people" ever indicate reference only to a subset of the population. Where the First Amendment guarantees the "right of the people" to peacefully assemble and petition the government, the First Amendment protects the rights of all of the people; not just a subset of people who join a special interest organization, such as the NRA or PETA or the ACLU. Likewise, the right "to keep and bear arms" belongs to all Americans individually, and does not belong only to the subset of people who join a militia.

Second, the Court concluded that the Second Amendment not only protects the individual right of Americans to "possess" arms, but also the right of Americans to "carry" arms. This conclusion was based upon the plain meaning of the words in the Amendment's text: "the right of the people to keep and bear arms."

Third, the Court concluded that the Second Amendment's guaranty of an individual right to possess and carry arms was closely associated with the "inherent right of self-defense." In other words, the Court held that the individual right to possess and carry arms does not only serve the purpose of providing for a "well-regulated militia," but that it also serves the purpose of protecting the individual right to defend one's self and one's family.

Fourth, the Court concluded that gun-control legislation banning the possession of all handguns, regardless of type, violated the individual right to possess and carry arms for the purpose of self-defense.

Fifth, the Court concluded that gun-control legislation, which required that lawfully possessed firearms remain locked and disassembled when in the home, violated the individual right to possess and carry arms for the purpose of self-defense.

The Court did, however, establish certain limits to the Second Amendment's guarantees. The Court stated:

"Like most rights, the right secured by the Second Amendment is not unlimited. From Blackstone through the 19th-century cases, commentators and courts routinely explained that the right was not a right to keep and carry any weapon whatsoever in any manner whatsoever and for whatever purpose. For example, the majority of the 19th-century courts to consider the question held that prohibitions on carrying concealed weapons were lawful under the Second Amendment or state analogues. Although we do not undertake an exhaustive historical analysis today of the full scope of the Second Amendment, nothing in our opinion should be taken to cast doubt on longstanding prohibitions of the possession of firearms by felons and the mentally ill, or laws forbidding the carrying of firearms in sensitive places such as schools and government buildings, or laws imposing condition and qualifications on the commercial sale of arms."

Thus, as the Court recognized, there is ample room for constitutionally permissible gun-control legislation. Such gun-control legislation may limit the manner in which a firearm is carried, so long as the regulation does not negate the fundamental right of self-defense. Thus, while a regulation that forbade the carrying of loaded firearms would likely violate the Second Amendment (as forbidding the carriage of a loaded firearm would negate the right of self-defense), it is also likely that licensing regulations that limit the right to carry a concealed firearm (such as those that exist in Florida) are constitutionally permissible.

More important still, the Court recognized that the Second Amendment does not protect the right to carry any weapon whatsoever. As the court stated: "the sorts of weapons protected [by the Second Amendment] [are] those 'in common use at the time.'" The Court suggested that "unusual and dangerous" weapons are not necessarily protected by the Second Amendment. For instance, the Court made no objection whatsoever to current gun-control legislation that effectively "bans" fully-automatic weapons and "sawed-off shotguns."

How, then, does the Court's holding in Heller relate to calls for the renewal of the 1994 "Assault Weapons Ban," which severely regulated the possession of certain semi-automatic rifles? Certainly, it appears as though the Court left open the door for such legislation, assuming that semi-automatic rifles are not "in common use," but are rather considered "dangerous and unusual."

In Heller, the Court held that a complete ban of all handguns was unconstitutional, based upon a determination that handguns are weapons "in common use." However, the Court was unclear as to what factors speak to the commonality of a weapon. Do we measure the commonality of handguns based upon the number of legally possessed handguns in the country? Do we measure it by the percentage of gun owners who own handguns? Perhaps we measure it by the percentage of overall Americans who own handguns? The Court didn't say. Instead, the Court provided various reasons as to why an American might prefer a handgun to a rifle for purposes of self-defense. The Court also observed that: "Whatever the reason, handguns are the most popular weapon chosen by Americans for self-defense in the home."

According to the blog Crime, which is Slate's new "crime blog," the precise number of assault weapons in America is hard to pin down. Suffice it to say, conservative estimates place the number somewhere in the millions; which, as Crime puts it, "is a whole hell of a lot of assault weapons in America." No doubt, the NRA and other gun rights advocates will cite these numbers to argue that semi-automatic rifles--like handguns--are "in common use," and thus constitutionally protected.

On the contrary, gun-control advocates will argue that semi-automatic rifles are not as common as handguns and don't deserve the same constitutional protection. In support of this argument, they may convincingly cite the very reasons listed in the Heller decision as to why Americans prefer handguns over rifles for purposes of self-defense.

Assuming that a renewal of the "assault weapons" ban would not violate the Second Amendment, it is hardly clear that such legislation would appreciably impact homicide rates in America, or would impact the number of mass-murder incidents. As ABC News correctly observes, the very weapon used by Adam Lanza, a Bushmaster .223, wasn't even prohibited under the 1994 "assault weapon's" ban! In fact, much of the legislation was focused on the aesthetics of weapons, as opposed to the functionality of the weapon.

The 1994 "assault weapons" ban also included a prohibition on the possession of "high capacity magazines," which the law defined as magazines that held more than 10 rounds of ammunition. The theory behind calls for prohibitions on "high capacity magazines" is that with smaller magazines, a mass murderer like Adam Lanza would have to reload more often, and thus perhaps kill fewer victims. While in theory this may be true, in real-world shooting incidents, it is questionable whether the need to reload appreciably diminishes a shooter's killing efficiency. For instance, Seung-Hui Cho, who committed the deadliest school-shooting in American history, reloaded numerous times throughout his rampage. Indeed, investigators discovered 17 used magazines at the site of Norris Hall, where Cho murdered 30 people in the span of 10-12 minutes. What's more, he did so without the use of a semi-automatic rifle.

Of course, it is entirely possible that Cho may have killed even more people, had he not had to reload 17 times. From a policy perspective, the question is whether the potential danger of "high capacity magazines" outweigh the interest of law abiding citizens to rely upon such magazines for purposes of self-defense. From a legal perspective, the constitutionality of such a ban will hinge upon the Court's determination of whether banning "high capacity magazines" impermissibly deprives an individual to the right of self-defense, as a matter of law.

Other proposed gun-control legislation includes prohibiting the private sale of firearms, as such private sales do not require background checks. In the State of Florida, for instance, Florida Statutes 790.065 and 790.0655 regulate the sale of firearms by "licensed dealers," as well as at retail, but they don't address private sales. At a minimum, private sales in Florida are prohibited to the extent that the purchaser is a convicted felon or juvenile delinquent and/or a minor without parental consent. However, without any regulatory oversight, these minimum requirements are mostly unenforceable.

Nevertheless, there are numerous gun-control laws in the State of Florida that regulate the lawful possession and carriage of firearms. These regulations include, but are not limited to, the prohibition of Carrying a Concealed Firearm without a permit; Violation of a Concealed Firearm Permit (which is committed by carrying a firearm into certain sterile areas, such as police stations, courthouses, schools, bars, and professional sporting events); Possession of a Short-Barreled Rifle, Shotgun, or Machine Gun; and Selling or Possessing a Firearm with Altered/Removed Serial Number. It is also unlawful to Discharge a Weapon on School Property or to Improperly Exhibit a Firearm.

While these laws are enforced throughout the State of Florida, no combination of laws will ever blot out the insufferable existence of violent crime or mass murder. Gun-control laws, no matter how well-intentioned, are unlikely to affect the behavior of the criminally inclined or the mentally ill. Nevertheless, it is incumbent upon our society to take measures to staunch the disturbing trend of mass murder as much as possible. Whatever we do, it is imperative that we do not take action simply for the sake of taking action. We don't just need answers, we need real, effective answers. What is more, we cannot afford to sacrifice the rule of law and the fundamental liberties of which we are entitled. Perhaps, this Christmas, our political leadership will give us the gift of sober, reasoned judgment. That would be a Christmas Miracle, indeed.

WILL FLORIDA'S CARRYING A CONCEALED WEAPONS/FIREARM STATUTE BE AFFECTED BY THE 7TH CIRCUIT'S RECENT RULING IN MOORE V. MADIGAN?

Wed, 12 Dec 2012 18:41:06 -0500

Yesterday, the 7th Circuit Court of Appeals rendered a historic opinion, vindicating the individual right of self-defense outside of the home, enshrined in the United States Constitution's Second Amendment. Fortunately for those living in the Sunshine State, the State of Florida has long recognized and protected the right of citizens to lawfully and responsibly carry firearms for the purpose of self-defense. However, keenly aware of the dangers associated with the unlawful and irresponsible use of weapons, the State of Florida does maintain and enforce several firearm regulations, including a ban on the unlicensed carrying of a concealed firearm and/or weapon. It is a felony offense in the State of Florida to carry a concealed firearm without a valid permit.

In the short term, yesterday's ruling in the 7th Circuit will not impact Florida's concealed carry statutes because the 7th Circuit's ruling is only "persuasive," and does not bind Florida courts. What is more, unlike the overturned law in Illinois, Florida law already protects the rights of law abiding citizens to "keep and bear arms" outside of the home. Nevertheless, if the State of Illinois appeals the 7th Circuit's ruling, the issue of the constitutionality of laws forbidding the concealed or open carry of firearms outside of the home may reach the United States Supreme Court. While theoretically the Supreme Court could rule that the Second Amendment guarantees greater protection than Florida law currently provides, it is highly doubtful it will do so. Florida is already a "gun friendly" state, and no serious constitutional scholar denies the ability of government to impose some level of common-sense regulation. What is more, if the Supreme Court were to overrule the 7th Circuit, holding that the Constitution does not protect the right to carry firearms outside of the home, such a holding would not affect Florida law, as the State of Florida is well within its constitutional right to offer greater protections than those guaranteed in the United States Constitution.

Despite the fact that the 7th Circuit's opinion will not affect Florida's prohibition on Carrying a Concealed Firearm, the decision does provide an interesting Second Amendment analysis. Moreover, like all cases involving the Second Amendment, it is an analysis that is already proving controversial.

Indeed, the Illinois House Majority Leader, Barbara Flynn Currie, D-Chicago, has already indicated her worry that allowing for lawful concealed carry in Illinois will lead to "guns out of control on each of our city's streets...I don't want people out of control wandering the streets with guns that are out of control." Apparently, Ms. Currie is unaware that in her home city of Chicago, where the strictest gun control laws in the nation reign supreme, the situation is already "out of control." The number of homicides in Chicago reached 435 as early as October, 2012. That number was significantly higher than those in the larger cities of New York City (339) and Los Angeles (241), during the same time period. In fact, in one October weekend in Chicago, 29 people were shot. If Ms. Currie doesn't consider 29 gunshot victims in a single weekend "out of control," she must not know the meaning of the words.

This, of course, is not to say that concealed carry rights, such as those protected in Florida, will solve Chicago's intense gun violence. It is suggestive, however, that Illinois' unprecedented gun control laws have had little to no success making the citizens of Illinois safer.

From a legal perspective, however, the policy question of whether gun control laws make society more or less safe is separate and apart from the question of whether a gun control law is constitutional or unconstitutional. As the 7th Circuit noted: "the empirical literature on the effects of allowing the carriage of guns in public fails to establish a pragmatic defense of the Illinois law [that bans concealed carry]. Anyway, the Supreme Court made clear in Heller that it wasn't going to make the right to bear arms depend on casualty counts." In other words, the unlawful (and, indeed, deadly) use of firearms by some, does not abrogate the constitutional rights of others. If the breadth of our constitutional rights were dependent upon the behavior of society's least responsible, our constitutional rights wouldn't be worth much at all.

However, in at least one, strange passage of the 7th Circuit's opinion, all parties can agree: it is illegal to shoot someone for tearing up a copy of Norman Rockwell's classic work, "Santa With Elves." As the 7th Circuit writes: "To confine the right to be armed to the home is to divorce the Second Amendment from the right of self-defense described in Heller and McDonald. [The right to self-defense] is not a property right--a right to kill a houseguest who in a fit of aesthetic fury tries to slash your copy of Norman Rockwell's Painting Santa With Elves. That is not self-defense, and this case like Heller and McDonald is just about self-defense."

So Merry Christmas, Chicago. You will soon be capable of carrying a firearm in public. But don't worry, Norman Rockwell haters: you can still destroy copies of "Santa With Elves," without worrying that the owner may legally shoot you. Whether they illegally shoot you...well, that's another issue altogether.

Probable Cause Affidavit in George Zimmerman Case Woefully Inadequate

Fri, 13 Apr 2012 17:09:53 -0500

It's been over a month since George Zimmerman shot and killed Trayvon Martin, an unarmed 17 year old child. State Attorney Angela Corey has been on the case since March 23, 2012, when Governor Rick Scott appointed her to oversee the criminal investigation into the shooting. After weeks of gathering evidence, speaking to witnesses, and evaluating the case, State Attorney Corey decided to charge George Zimmerman with Second Degree Murder. In a case that has captivated a nation and threatened to open the seams of racial animosity, State Attorney Corey filed a Probable Cause Affidavit that is, in a word, a flop.

The standard for Probable Cause is extremely low. Probable Cause for arrest exists where the facts and circumstances known to the arresting officers are sufficient to cause a reasonably cautious person to believe that the suspect was guilty of committing a crime. The standard of weighing the evidence for probable cause is far lower than the standard of weighing evidence required for a conviction beyond a reasonable doubt.

At a minimum, a Probable Cause Affidavit must state facts establishing that a defendant has committed each of the elements of the charged crime. Thus, an affidavit in support of Second Degree Murder must state facts establishing that 1) the victim is dead; 2) the victim's death was caused by the criminal act of the defendant; and 3) the killing was accomplished through an act "imminently dangerous to another and demonstrating a depraved mind." This last element requires an act that: (a) a person of ordinary judgment would know is reasonably certain to kill or do serious bodily injury to another; (b) is done from ill will, hatred, spite, or an evil intent; and (c) is of such a nature that the act itself indicates an indifference to human life.

The Probable Cause Affidavit in the George Zimmerman case doesn't come close to these requirements. Alan Dershowitz, the esteemed law professor from Harvard, probably puts it best:

Let's break down where the Probable Cause Affidavit goes wrong. First, the affidavit makes assertions without providing a basis for the assertions. For instance, the Affidavit states: "Zimmerman confronted Martin and a struggle ensued." However, the affidavit doesn't explain the basis for the conclusion that "Zimmerman confronted Martin." Did a witness say they saw Zimmerman confront Martin? Did Zimmerman admit to confronting Martin? On what basis does the investigating officer swear under oath that he has reason to believe that Zimmerman confronted Martin?

Secondly, the affidavit does not even pretend to state a fact establishing that the shooting was committed with "ill will, hatred, spite, or evil intent." At most, the affidavit claims that Zimmerman said the words "these f------ punks" at some point prior to the shooting. Is the prosecution basing its murder charge on the phrase "f------ punks?"
Without even a single sentence of the affidavit claiming that Zimmerman pulled the trigger with "ill will, hatred, spite, or evil intent," it is hard to imagine how the prosecution, in good faith, can file charges for Second Degree Murder.

Lastly, and perhaps most importantly, the affidavit omits material evidence, as well as misstates a known fact. For instance, the affidavit claims that a police dispatcher "instructed" Zimmerman not to follow Martin. However, in the recorded phone conversation, the police dispatcher merely tells Zimmerman: "we don't need you to do that." While this may seem like a minor discrepancy, it is clearly inaccurate to state that the dispatcher "instructed" Zimmerman not to follow Martin. At a minimum, this misstatement of fact evinces a disregard for accuracy. What's worse, the affidavit never makes mention of the 911 caller, who claimed that (1) Zimmerman yelled for help; and (2) that Martin as on top of Zimmerman, "beating up" on Zimmerman. While the affidavit claims that Zimmerman "admitted [to] shooting Martin," the affidavit omits that Zimmerman claimed to have shot Martin in self-defense.

These omissions potentially render the Probable Cause Affidavit legally insufficient, and entitle Zimmerman to an evidentiary hearing on the sufficiency of probable cause. As the Florida Supreme Court held in Johnson v. State, 660 So. 2d 648 (Fla. 1995), if omitted material is added to an affidavit and thus defeats probable cause; and if the omission resulted from intentional or reckless police conduct with the intent to deceive, then a defendant is entitled to an evidentiary hearing.

The woefully inadequate Probable Cause Affidavit indicates that the prosecution is skating on thin ice. Manslaughter charges would be far more appropriate.

Why Trayvon Martin's Case May Not Go To A Jury

Fri, 13 Apr 2012 14:01:39 -0500

Now that prosecutors have brought charges against George Zimmerman, you probably think that a jury is going to hear the facts and decide the case. Think again. Under Florida's "Stand Your Ground" law, if George Zimmerman can convince a judge that he acted justifiably, he is entitled to immunity from prosecution. That means no jury; no conviction; no jail. Think of it as a big "Get Out of Jail Free" card. It is worth repeating: Florida's "Stand Your Ground" law does not just provide an affirmative defense; it provides immunity. The distinction is extremely significant.

For instance, just last month, a Florida judge dismissed Second Degree Murder charges in the killing of Pedro Roteta, an unarmed 26 year old man. The defendant, Greyston Garcia, allegedly saw Roteta steal a radio from Garcia's truck. Unlike George Zimmerman, Greyston Garcia didn't call the police before running after Pedro Roteta. Instead, Garcia grabbed a large knife and chased Roteta for at least a block. Upon catching up with Roteta, Garcia proceeded to stab Roteta to death. After the brutal killing, Garcia took Roteta's bag of stolen radios and allegedly pawned two of them; he also hid the knife and never called 911 to report the incident. Nevertheless, thanks to Florida's "Stand Your Ground" immunity clause, Greyston Garcia never faced a jury. Instead, Garcia filed a Motion to Dismiss and testified that Roteta swung a bag of stolen radios at his head. Fearing for his life, Garcia claims that he stood his ground--and stabbed Roteta to death.

That's right: Garcia ran down and stabbed an unarmed man to death; pawned the items taken from the dead man; and hid the knife from police. Yet, Garcia never stood trial or faced a jury. How is that possible? Florida's "Stand Your Ground" immunity clause.

Under F.S. 776.032, a person is "immune from criminal prosecution and civil action," if a person justifiably uses deadly force. This is an extraordinarily important aspect of the law, because immunity provides a greater level of protection than an affirmative defense. In the case of an affirmative defense, the accused must go to trial and convince a jury that he acted justifiably. With immunity, the case will never get to a jury in the first place. In order to win immunity, the accused need only convince a judge, by a preponderance of the evidence, that the killing was justified.

In order to show that the killing was justified, the accused must prove that: 1) the defendant was not otherwise engaged in unlawful activity; 2) the defendant was at a place where he had a right to be; 3) the defendant was attacked; and 4) the defendant reasonably believed that he was about to suffer death or great bodily injury. However, if the prosecution can show that the defendant "provoked" the incident, the Defendant loses his right to claim justifiable use of force. From what is publicly known about the evidence in the case, George Zimmerman has a real chance of winning a dismissal. Here's why:

First, George Zimmerman need only convince the judge by a preponderance of the evidence. The preponderance of the evidence standard is the lowest burden in criminal law. Zimmerman need only convince the judge that it is more likely than not that he acted justifiably. When compared with the State's burden at trial, which is to convince six individual jurors that Zimmerman committed the crime beyond and to the exclusion of every reasonable doubt, it becomes obvious that Zimmerman's burden is significantly lower than that of the prosecution.

Second, the lack of eye-witnesses to the incident provides the State with very little evidence to contradict Zimmerman's claims. From what is publicly known about the evidence, the State does not have an eye-witness that can testify that Zimmerman attacked Martin; the State does not have an eye-witness that can testify that Zimmerman didn't walk back to his car; the State doesn't have an eye-witness that can testify that Zimmerman shot Martin while Martin was helpless; the State simply doesn't have an eye-witness to the shooting itself.

Admittedly, the contents of the Medical Examiner's report have not yet been made public. If the Medical Examiner's report indicates that Trayvon Martin was shot from a distance, or shot in the back, then Zimmerman's chances of winning a dismissal decrease exponentially. However, considering the State's woefully inadequate Probable Cause Affidavit, in which the State made no indication that the Medical Examiner's report contradicts Zimmerman's claims, it is unlikely that the Medical Examiner's report will do much to aid the prosecution.

Zimmerman, however, has evidence to corroborate his claims. At least one witness has stated publicly that Martin was "beating up" Zimmerman. The same witness claims that Zimmerman was calling for help. Zimmerman received care from EMT's at the scene, who treated Zimmerman for a bloody nose and for an injury to the back of his head. Video surveillance from the night in question confirms that Zimmerman suffered injuries to the back of his head. In light of Zimmerman's low burden of proof, these corroborating pieces of evidence can prove essential in winning dismissal.

Thus, when looking at the elements that Zimmerman must establish to prove he acted justifiably, it seems reasonably certain that Zimmerman can prove by a preponderance of the evidence that: 1) he was not otherwise engaged in unlawful activity; 2) he was at a place where he had a right to be; 3) he was attacked; and 4) he reasonably feared he would lose his life or suffer great bodily injury. The State has never alleged--nor could they--that Zimmerman's following of Trayvon Martin was an unlawful activity; or that it placed Zimmerman at a location where Zimmerman had no right to be. Similarly, as already stated, the State does not seem to have an eye-witness to the initial physical confrontation between Zimmerman and Martin. Therefore, it will be extremely difficult for the State to contradict Zimmerman's claim that Martin attacked him and bashed his head into the concrete, creating for Zimmerman a well-founded fear of great bodily injury.

This leaves the State with one "ace in the hole:" the claim that Zimmerman "provoked" the incident. However, the "provocation" theory is shaky, at best. F.S. 776.041 provides that the "Stand Your Ground" law is not available to a person who: "Initially provokes the use of force against himself or herself." However, there are two exceptions, both of which favor George Zimmerman.

First, even if Zimmerman "provoked" the incident, he may still justifiably use deadly force, if: "Such force is so great that the person reasonably believes that he or she is in imminent danger of death or great bodily harm and that he or she has exhausted every reasonable means to escape such danger other than the use of force which is likely to cause death or great bodily harm to the assailant." According to Zimmerman and at least one witness, Trayvon Martin was on top of Zimmerman. What is more, Zimmerman claims that Martin bashed his head on the concrete, which caused Zimmerman to fear death or great bodily harm. If the State cannot contradict this version of events, Zimmerman likely can establish that he "exhausted every reasonable means to escape," (he claims he was pinned to the ground), and he reasonably feared Martin's use of force would "likely cause death or great bodily harm."

Second, it is far from clear that following Trayvon Martin while speaking with the police constitutes "provocation." The second exception to "provocation" states that if the provocateur "In good faith...withdraws from physical contact" and communicates his desire to "withdraw from physical contact," but the other party "continues or resumes the use of force," then the provocateur may rely on the "Stand Your Ground" law. What is important to note, is that F.S. 776.041(2)(b) presumes that the "provocation" includes "physical contact." However, based on the evidence that is public thus far, there is no evidence that Zimmerman initiated "physical contact." What is more, there is no precedent in Florida law indicating that conduct short of "physical contact" provides justification for the use of force, or amounts to "provocation."

Make no mistake: George Zimmerman has a real chance of avoiding a jury. All he has to do is convince a judge, by a preponderance of the evidence, that he acted in justifiable self-defense.

THE EVOLUTION OF FOURTH AMENDMENT CASE LAW FROM A HOLLYWOOD PERSPECTIVE

Tue, 07 Feb 2012 15:06:30 -0500

As every law student knows, words have meaning. Over the course of American history, the words of the Fourth Amendment have never changed. The meaning of those words, however, have changed dramatically. Recently, the United States Supreme Court issued a new Fourth Amendment ruling in United States v. Jones, 565 U.S. _____(2012). In the decision, the Court revitalized an old concept of Fourth Amendment jurisprudence: the government's trespass upon an individual's property interests can render a search unreasonable. This decision harkens back to a bygone era of Fourth Amendment jurisprudence, and adds a new link in the evolutionary development of our understanding of what constitutes a reasonable search and seizure. For a brief overview of the Fourth Amendment's evolution, let's stroll through the history of the Fourth Amendment through the lens of Hollywood.

To begin our journey through history, we must first travel to our mother country in the early 18th century. In May, 1707, well before the establishment of the United States of America and the ratification of the Fourth Amendment, the Kingdoms of England and Scotland unite to form a new political entity: the Kingdom of Great Britain. During this era, in the highlands of Scotland, lives an Irish actor named Liam Neeson. As a Scottish highwayman, Liam Neeson finds himself at odds with Tim Roth, an effeminate Englishman working for John Hurt, a wealthy Scottish noble. Presumably acting in the name of the Crown, John Hurt orders Tim Roth to take Liam Neeson into custody. Tim Roth dutifully takes a squad of British soldiers to the home of Liam Neeson and burns down the home and kills the cattle (and commits sexual battery upon Liam Neeson's wife, Jessica Lange, which is a separate matter altogether).

Unfortunately for Liam Neeson, as an 18th century Scottish highwayman, he does not enjoy the protections of the Fourth Amendment's proscriptions against unreasonable searches and seizures. Nevertheless, as a British subject, Liam Neeson does benefit from the protections of the English common law. At the time of Tim Roth's dastardly invasion of Liam Neeson's home, British law had already recognized the significance of individual property rights in relation to government searches and seizures. In 1603, the legendary Sir Edward Coke, acting as the Attorney General for England and Wales, reported on the famous Semayne's Case, in which Sir Coke wrote: "In all Cases when the King is party, the Sheriff (if the doors not be open) may break the parties house, either to arrest him, or to doe execution of the King's process, if otherwise he cannot enter. But before he break it, he ought to signify the cause of his coming, and to make request to open doors."

Thus, in the context of TIm Roth's invasion of Liam Neeson's home, Liam Neeson has legal recourse against Tim Roth, provided that Tim Roth acted without a warrant and/or did not "knock and announce" prior to "breaking the home." Clearly, Semayne's Case established a limit to the government's ability to enter the homes of British subjects, even with a warrant. This limitation was further bolstered in 1767, when the King's Bench ruled in the case of Entick v. Carrington; a case which would greatly influence the development of the Fourth Amendment.

In Entick, officers of the Crown, acting under the authority of a warrant, entered the home of a British subject, where they arrested the subject and confiscated his papers and books. The King's Bench held that the crown violated the subject's rights because the warrant (1) was not specific as to what papers were to be seized; and (2) the warrant was not based upon probable cause. The court reasoned that because the warrant was insufficient, the Crown had trespassed upon the property of the subject, and thus had violated the subject's rights, rendering the search and seizure unreasonable. Aware of this ruling, with its emphasis on property rights, America's founding fathers ratified the Fourth Amendment in 1791.

Let us then fast-forward to the era of prohibition and the Jersey Shore of the roaring 1920's. Ruling the Jersey boardwalk is Steve Buscemi, the flashy and corrupt treasurer of Atlantic City, who oversees a massive bootlegging operation. Michael Shannon, a crusading evangelist with a desire to sweep Atlantic City clean of its vice and sin, is a prohibition agent sent to investigate the burgeoning market of illegal booze. Shannon, who goes to great lengths to follow the activities of Buscemi, uses numerous methods to aid in his investigation. One of the options available to Shannon is an emerging technology: wiretaps. By attaching a wiretap to the telephone lines outside of Buscemi's home, Shannon can listen into all of Buscemi's private telephone conversations without trespassing upon Buscemi's property.

Unfortunately for Steve Buscemi, the Fourth Amendment of the 1920's does not prohibit the government from attaching wiretaps to an individual's phone lines without a warrant, provided that the government doesn't trespass on the individual's property. In the case of Olmstead v. United States, 277 U.S. 438 (1928), the Supreme Court ruled that it was permissible for prohibition agents to attach wiretaps to the phone lines outside of a bootlegger's office, because the Fourth Amendment only protected individuals from government intrusions into "material things--the person, the house, his papers or his effects." In the case of Olmstead, the government did not search a "material thing;" it attached a wiretap to an outside phone line to capture a private conversation.

As is evident from the Court's ruling in Olmstead, the meaning of the Fourth Amendment was closely connected to the concept of property rights and the protection of "material things." This remained the case for most of the 20th century.

Let us then move onto the tumultuous years of the early 1970's, when Clint Eastwood is protecting the mean streets of San Francisco. A crusty, no-nonsense cop, Eastwood takes down the bad guys with magnum force, and doesn't get "all broken up" when he violates their rights. Which is unfortunate for the District Attorneys in the Bay Area, because the Fourth Amendment is evolving to provide greater protections against unreasonable searches and seizures. Even if Clint were to do something rather tame, like attach a microphone to a phone booth with the intent of recording a conversation, he would no longer be acting within the constraints of the Fourth Amendment.

This is because in 1967, the United States Supreme Court deviated from its understanding of the Fourth Amendment, as articulated in Olmstead. In Katz v. United States, 389 U.S. 347 (1967), FBI agents affixed a microphone to the outside of a telephone booth to record the defendant's conversation. This wasn't very different from the actions of the prohibition agents in Olmstead, who tapped the phone lines of a defendant to listen to the defendant's private telephone conversation. In both Katz and Olmstead, the law enforcement officers never trespassed on the defendant's property. Nevertheless, the Court in Katz found that the FBI had violated the defendant's Fourth Amendment rights.

Famously stating that "the Fourth Amendment protects people, not places," the Court held that because the FBI recorded a conversation that the defendant justifiably believed would remain private, the FBI violated the defendant's Fourth Amendment rights. Writing in concurrence, Justice Harlan expressed his understanding of the Fourth Amendment as protecting an individual's "reasonable expectation of privacy." Under Harlan's analysis, if law enforcement, without a warrant, conducted a search that violated an individual's reasonable expectation of privacy, then a violation of the Fourth Amendment occurred. This new approach to the Fourth Amendment, which emphasized protecting the privacy of individuals, remained the status quo for over 40 years.

In the Supreme Court's most recent Fourth Amendment case, however, the Court has breathed new life into the old approach. In United States v. Jones, federal agents attached a GPS tracking device, without a warrant, to the undercarriage of a defendant's vehicle. The government argued that because the vehicle traveled upon public roads; and because the GPS device was attached to the vehicle's exterior, the defendant did not have any reasonable expectation of privacy in the location of the vehicle. Surprisingly, the Court refused to rule on whether or not the defendant had a reasonable expectation of privacy. Instead, the Court held that the agents trespassed upon the defendant's property when they attached the device, and thus the search was unreasonable.

Thus, the Court turned back the clock on Fourth Amendment jurisprudence, embracing an important tenet to the original understanding of the amendment: the government may not trespass upon an individual's property rights when conducting a search or seizure. This holding seems to raise doubt about the famous words in Katz: "the Fourth Amendment protects people, not places." If the Fourth Amendment didn't protect places in the 1960's, it certainly does now.

WHAT DOES THE SUPREME COURT'S NEW FOURTH AMENDMENT CASE MEAN FOR SOUTH FLORIDA CRIMINAL CASES?

Wed, 01 Feb 2012 13:06:35 -0500

The United States Supreme Court recently issued a new Fourth Amendment ruling, in which the Court upheld the exclusion of GPS evidence against an alleged drug trafficker. The basis for the Court's decision was that the federal government trespassed upon the defendant's property rights by installing a GPS monitor on the defendant's vehicle without a warrant. In the short term, the decision has the potential to impact prosecutions in South Florida, as it provides an additional theory through which Florida defense attorney's may attempt to suppress evidence. On the other hand, the decision does not touch on whether the GPS monitoring of a vehicle violates an individual's "reasonable expectation of privacy." Thus, the decision falls far short of creating a new, protected privacy interest.

It was the Court's failure to address this issue that resulted in an interesting 5-4 split among the justices. While all 9 justices agreed on the result of the case, the Court split 5-4 as to the legal basis for the decision. Interestingly, the 5-4 split didn't reflect the typical divide between conservatives and liberals. Scalia, Roberts, Kennedy, Thomas, and Sotomayor voted in the majority, while Alito, Breyer, Ginsburg, and Kagan voted as a concurring minority. Justice Alito wrote on behalf of the minority, urging the Court to recognize a broader privacy interest against the use of prolonged GPS monitoring. Although Justice Scalia left open the possibility that prolonged GPS monitoring may violate an individual's "reasonable expectation of privacy," he and the majority decided the case on the more narrow grounds that law enforcement officers trespassed upon the defendant's property interests when they attached the GPS monitor to the bottom of the defendant's vehicle.

In what could only have happened in sparring legal opinions between Scalia and Alito, the justices debated the likelihood of 18th century "constables" stowing away in horse-drawn coaches, where they could secretly record the movements of revolutionary-era criminal defendants. While Justice Scalia accepted the possibility of such an occurrence, Justice Alito wrote: "this would have required either a gigantic coach, a very tiny constable, or both--not to mention a constable with incredible fortitude and patience."

While the above scenario and debate is somewhat silly (and "irrelevant," in the words of Scalia), it highlights the evolving technology of criminal investigations, and the potential constitutional limitations to the use of such technology. In its opinion, however, the Court "punted" on this issue, which leaves unanswered the pressing concern of whether prolonged GPS monitoring violates an individual's Fourth Amendment rights.

For instance, what if the government electronically tracked the movement of a suspect, without a court order, and without trespassing on an individual's property? With current GPS technology, as well as with upcoming imaging technology and the advent of data-mining, it is not far-fetched to imagine the federal government capable of collecting massive amounts of data on individuals, which could reveal an individual's personal secrets.

For example, if the government could employ prolonged GPS tracking of an individual without court order, the government could amass information regarding an individual's private life, including an individual's sexual, business, political, and/or religious life. Utilizing this technology, the government could track how often an individual goes to church; travels to a gay bar; what business contacts an individual engages with; or whether an individual goes home to his/her family after work or goes to a motel with a colleague of the opposite sex. Essentially, the ability of the government to track every movement of any individual without court order would provide the government with the power to invisibly look over the shoulder of every American citizen.

There is little doubt that the Court will eventually have to address the constitutional implications of new surveillance technologies. Until then, law enforcement will continue to develop and use new sophisticated techniques to track the movements of suspected wrongdoers. However, the days of attaching GPS devices without a warrant are over. Although the Supreme Court's decision could have gone further, it nevertheless provides an additional argument for defense attorneys to move to suppress evidence that was collected in a manner inconsistent with the Constitution.

CAN MIAMI, BROWARD, OR PALM BEACH COUNTY COPS STOP INDIVIDUALS CARRYING FIREARMS, EVEN IF THE INDIVIDUAL HAS A CONCEAL CARRY PERMIT?

Fri, 13 Jan 2012 11:19:06 -0500

Recently, a Federal District Court in New Mexico addressed the interesting 4th Amendment issue of whether "reasonable suspicion" exists to justify an investigative stop of an individual in a "right to carry" state, based on an officer's observation that an individual is carrying a concealed firearm. Sounds complicated? Well, let's break down the issues.

First, according to the NRA, 40 states allow individuals to legally carry concealed firearms. Of those 40 states, Alaska, Arizona, Wyoming, and Vermont do not even require permits to carry concealed firearms. In the remaining 36 "right to carry" states, including Florida, there is a process through which individuals may apply and receive permits from the state, which allow for the lawful carrying of concealed firearms. However, Florida and most other states, including New Mexico, prohibit the carrying of concealed firearms without a permit.

Second, under the 4th Amendment of the United States Constitution, law enforcement officers are limited in their ability to detain individuals, even for a brief matter of time. Essentially, there are three types of encounters between law enforcement officers and civilians: consensual encounters, investigative stops, and arrests. During a consensual encounter, an officer and a civilian interact consensually, with the civilian enjoying the freedom to leave at any time. During an arrest, an officer must either have probable cause to believe that a crime has occurred or be in possession of a valid arrest warrant.

For an officer to justifiably detain a citizen for an investigative stop, the officer must have reasonable suspicion to believe that the individual is involved in criminal activity. In order for an officer's suspicion to be "reasonable," the officer "must have a particularized and objective basis for suspecting the particular person stopped of criminal activity." What is more, if the stop is based upon reasonable suspicion, the stop must be "reasonably related in scope to the circumstances" that justified the reasonable suspicion. In other words, if an officer has a particularized and objective basis for suspecting that a person is involved in trafficking drugs through his suitcase at an airport, the officer cannot detain the person and his/her luggage for an hour and a half before conducting an investigation, because the length of the detention would not be reasonable given the circumstances.

Which brings us to the heart of the matter. In Florida and other "right to carry" states, it is perfectly legal for an individual to carry a concealed firearm so long as the individual possesses a valid permit to do so. Conversely, it is unlawful in Florida for an individual to carry a concealed firearm if the individual does not have a valid permit to do so. Thus, the question presented to the New Mexico court was whether it was possible for a law enforcement officer, based on the observation of a concealed firearm, to generate a particularized and objective basis for suspecting a particular person of criminal activity.

The New Mexico court held that an officer may generate reasonable suspicion on the basis of an observation of a concealed firearm, depending on the circumstances. The court held that under a "totality of the circumstances" analysis, an officer's observation of a concealed firearm in a high crime area does justify an investigative stop. What is more, the court reasoned that just because an activity is potentially lawful, does not mean that the activity cannot give rise to reasonable suspicion.

This leads to an interesting thought: how does this holding apply to stopping motorists who may be driving without a driver's license? In Florida, just as it is only lawful to carry a concealed firearm with a permit, it is also only lawful to drive an automobile with a driver's license. If a law enforcement officer may stop someone for carrying a concealed firearm on the suspicion that the person does not have a permit, why can't a law enforcement officer stop someone who is driving a car on the suspicion that the person does not have a license?

Clearly, otherwise lawful activity can give rise to a reasonable suspicion of wrongdoing. Indeed, the defendant in the seminal case of Terry v. Ohio was doing nothing unlawful before he was detained by law enforcement; but given the totality of the circumstances, his behavior was objectively suspicious. In the case addressed by the New Mexico court, the defendant was at work at a convenience store in a high crime area. Not only is it not suspicious that an employee in a convenience store in a high crime area carries a concealed weapon, but it is arguably unreasonable not to carry a concealed firearm in such an environment.

Unquestionably, any interaction between law enforcement and an armed citizen carries with it an increased level of danger for law enforcement. Balancing the second amendment rights of Americans with the safety of those who enforce the laws of society is a difficult task. However, decisions that broaden the scope of "reasonable suspicion" have the potential to go well beyond the issue of concealed weapons; they may further tip the balance away from the individual liberties of Americans.

SOUTH FLORIDA D.U.I. HANDBOOK, PART 1

Tue, 03 Jan 2012 14:30:57 -0500

After catching a performance at the Kravitz Center in West Palm Beach and having a couple of glasses of wine with dinner at the nearby Ruth's Chris Steakhouse, Mr. Doe settles in behind the wheel of his car for an uneventful drive back to his home in Fort Lauderdale. It is late at night, and I-95 is nearly abandoned. With such little traffic, Mr. Doe puts on the cruise control at a moderate 75 m.p.h. and turns on the radio to listen to some music. Just as he is working the controls of his radio, his eye catches the reflection of the streetlight off of the black silhouette of a Florida Highway Patrol car. His heart sinks as he realizes he's the only car on the road, going 10 m.p.h. over the speed limit. The trooper's headlights immediately turn on, as if the squad car has suddenly awoke from a comfortable slumber. Mr. Doe nervously hits the breaks to bring his car down to 65 m.p.h., and clumsily puts both hands back on the steering wheel, causing his car to slightly swerve within its lane. The trooper quickly accelerates, so that the police car is almost touching the back bumper of Mr. Doe's vehicle. The flashing lights illuminate the sky, and Mr. Doe begins to sweat with nervousness. He pulls over the car and waits for the trooper to walk over to his driver's side window, wondering if his breath still smells of the wine.

The above vignette is purely fictional, but it is representative of similar incidents that happen every night in Palm Beach, Broward, and Miami-Dade counties. While D.U.I. is a serious problem in Florida and the rest of the country, drinking and driving is not necessarily against the law. It is perfectly legal to drink alcohol and operate a motor vehicle, so long as the person operating the motor vehicle is not under the influence of alcohol to the extent that his/her normal faculties are impaired. Unfortunately, law enforcement officers in Florida are required to make subjective judgments on whether an individual's normal faculties are impaired, which often results in false allegations of D.U.I. Fortunately, the law includes numerous protections for individual drivers, which, if understood and followed, could greatly reduce the likelihood of an unfair conviction for D.U.I.

First and foremost, it is important to recognize that D.U.I. investigation, like all criminal investigation, is about collecting evidence. In the context of D.U.I. investigations, officers collect evidence by making as many observations about the driver as possible. This observation process begins the moment the officer focuses on a driver while the driver is operating his/her motor vehicle on the road. The officer is looking to see whether the driver is speeding or going too slow; whether the driver is drifting or swerving in his/her lane; whether the driver is obeying traffic devices or driving aggressively. These observations are called "driving pattern observations." The moment an officer pulls over an individual who has been drinking and driving, the officer has already made at least one observation (and possibly more) of a driving pattern that the officer will consider as evidence of D.U.I.

However, observations of a driving pattern do not establish probable cause to arrest for D.U.I. Indeed, observations of a driving pattern alone are not enough to provide a basis for a D.U.I. investigation. Before an officer requests a driver to conduct Field Sobriety Exercises (F.S.E.'s), the officer must have reasonable suspicion to believe that the driver is under the influence of alcohol or a controlled substance, to the extent that the driver's normal faculties are impaired. In order to establish such a suspicion, the officer must make some observations that indicate the driver is under the influence. Typically, these observations include the smell of alcohol on the driver's breath, slurred speech, bloodshot and glassy eyes, and unsteady balance.

In the seminal case of State v. Taylor, the Florida Supreme Court held that an officer's observations that a driver "staggered" and exhibited "slurred speech, watery, bloodshot eyes, and a strong odor of alcohol," coupled with a driving pattern of speeding, provided "more than enough" to establish reasonable suspicion. In Origi v. State, the Fourth District Court of Appeal held that where an officer observed a driving pattern of speeding, coupled with bloodshot eyes and a smell of alcohol, the officer had enough reasonable suspicion to request F.S.E.'s. Indeed, in virtually every case where the courts have validated reasonable suspicion, the officer observed a smell of alcohol on the driver's breath (see State v. Amaqrane).

Thus, in order to avoid an unfair arrest for D.U.I., it is obviously best to simply not drink and drive at all. Even when a driver drinks modestly, and his/her normal faculties are not impaired, the mere smell of alcohol coupled with speeding might justify the initiation of a D.U.I. investigation. In the event a driver who has had a modest amount to drink is pulled over, it is in the driver's best interest to limit his contact with law enforcement. The more a driver speaks, the greater the likelihood that an officer will smell alcohol and initiate a potentially embarrassing D.U.I. investigation.

In future entries, we will discuss the law pertaining to contact between drivers and law enforcement officers, as well the law regarding F.S.E.'s.

PALM BEACH COUNTY HAS ITS OWN FOOTBALL SEX SCANDAL

Fri, 02 Dec 2011 16:08:54 -0500

According to the Palm Beach Post, four football players at powerhouse Glades Central High are under suspension after a 14-year-old girl accused the players of pressuring her to engage in oral sex, presumably against her will. The accusation will seriously impact the accused's ability to obtain coveted football scholarships, which could potentially serve as tickets out of the high-crime, impoverished environs of Belle Glade, Florida. What is more, the accusation may lead to criminal charges, which carry the possibility of prison and mandatory registration as a sex offender.

According to the Post's story, the four football players pressured the girl to perform oral sex after the girl skipped class. The incident came to light after the victim's mother heard rumors of the encounter between her daughter and the four football players. Although the girl initially denied anything had occurred, she later admitted to skipping class and being pressured to perform sexual acts on the four accused players. If prosecutors find the girl credible and believe they can prove the case beyond a reasonable doubt, the football players will likely face charges of Lewd or Lascivious Battery, a Second Degree Felony that requires convicted individuals to register as sex offenders.

Under Florida Statute 800.04(4), Lewd or Lascivious Battery is defined as: "A person who engages in sexual activity with a person 12 years of age or older, but less than 16 years of age. Pursuant to the Florida Supreme Court Standard Jury Instructions, to prove the crime of Lewd or Lascivious Battery, the State must show beyond a reasonable doubt that (1) the victim was 12 years of age or older, but less than 16; and (2) the defendant committed an act with the vicim in which the sexual organ of the defendant penetrated or had union with the mouth of the victim. The term "union" means contact.

If the victim's story is to be believed, then the conduct of the football players squarely falls within the proscriptions of the statute. Indeed, even if the accused football players were minors, they would still face the possibility of prosecution, as well as the possibility of registering as sex offenders. What is more, the State does not need to prove that the sex was pressured or coerced, because under Florida law a 14-year-old is incapable of consenting to sexual activity. Worse still for the players, the State does not need to prove that the players knew the girl was underage. In fact, even if a jury were to believe that (a) the victim told the players that she was 18 years of age, and (b) the players reasonably believed that she was 18 years of age in reliance of the victim's misrepresentation, the players would still be guilty under the law.

All however, is not lost for the players. To prove the players guilty, the prosecution still needs to establish that sexual activity occurred. Typically, in sex-crimes investigations, law enforcement will establish that sexual activity occurred through the use of corroborative evidence, such as DNA evidence. Law enforcement will also conduct controlled telephone calls, in which the victim or other cooperating witness calls a suspect and elicits incriminating statements from the suspect, while the police secretly listen into the call.

It is doubtful that law enforcement will have much opportunity to develop corroborative evidence in this case. First, the incident was a delayed-report, which greatly lowers the chance of collecting physical or DNA evidence. Secondly, the players have obviously been tipped off that an investigation is underway, and thus are unlikely to make incriminating statements during a controlled phone call. Lastly, even if the police were to question the players directly, they have a Fifth Amendment right to remain silent.

Thus, the allegations amount to a he-said-she-said. More precisely, they amount to four against one, as it is unlikely that any of the four accused will admit any guilt. What is worse for the State, the victim reportedly denied that sexual activity occurred when first asked about the incident, which damages her credibility. With a skilled defense attorney with experience in sex-crimes prosecutions, the accused players may be able to avoid criminal prosecution, or at least limit their exposure to criminal sanctions.