I Agree With Obama

tv old.jpgWho out there watches TV these days? It's not very chic to admit to watching much TV, as such activities would take away from more "important" activities. I have friends that check their phone non-stop, take it everywhere--yet boldly proclaim (in their best holier than thou voice) "I don't watch much TV". What do you call that 4.7" screen you carry around 24/7? Hate to burst bubbles here, but smartphone addicts are just trading TV one screen for another.

Nobody ever admits to watching much TV, but one thing I like about Obama is the fact that he owns up to watching his fair share of television. And, he has good taste (because, ..he likes the shows I like). So, let me go on the record here to say that I agree with Obama--the Showtime series "Homeland" is one of the best shows on television. For those of you who don't know, Homeland is a CIA drama that tracks terrorists. The funny thing is, most of the CIA operatives on the show are not entitled to know what the other characters know. Everyone is on a need to know basis. (Wait for the segue, wait, here it comes...) The criminal justice system treats the jury in much the same way, the facts shared with the jury are on a need to know basis.

The case of Young v. State lays out for us what happens when the jury is told something they're not supposed to know. 137 So. 3d 532 (Fla. 4th DCA 2014). Young was convicted of burglary of a dwelling and grand theft (yes, it's possible under some circumstances, but we're not going there today). The error in this case came down to a prosecutor's misstatements to the jury during closing. To understand the err, let's review what led up to it.

On the day of the burglary, the victim was invited to the police station to check out a photo lineup. Young was picked out of the photo lineup. Young's defense attorney filed a Motion to Suppress the photo lineup because it was "inherently suggestive". For those of you who don't know how this works, let me explain how a bad lineup is created: (1) victim tells officer what the suspect looked like (2) officer goes into database and finds five people that look vaguely similar to the victim's description, and (3) the sixth photo will be the person the officer believes to be guilty. For example, if the victim claims the suspect was an albino white male, a la Jim Gaffigan, the line up will include three dark skin Italians, two guys from India, and one super white dude who they suspect committed the crime. All six of the folks are technically white males, but small detail regarding the shade of skin complexion will be left out of all police reports--thereby making the photo lineup seem more legit.

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Can the Police Break Down My Door?

front door.jpgWhat happens when you agree to "free consultations?" Well, you get lots of interesting questions. I should parley these free consultations into some sort of stand-up routine, but these consultations are confidential so I'll go one more day without breaking any ethical rules. Actually, my criminal defense stories are no match for those in the medical profession ("he had a salt shaker stuck up where?").

The best story tellers of all may be astronauts, they can one-up any story. For example, [SETTING: stuffy cocktail party, scarf wearing exotic car owner describes his world travels] "As I drove my Maserati thru the hills of India, the locals dropped their farm equipment in awe, they had never seen such a vehicle" - Astronaut response: "Yea, kind of reminds me of the first time I drove a rover on the moon, I believe it was the Sea of Tranquility". You see? Astronaut trumps everything. But, to get even further off track here, I should note that Jim Gaffigan disagrees, he feels the job of Pope trumps everything: "Oh, your son's a doctor, yea, our son is Pope. Oh, your doctor son has a nice house--our son has his own City, it's in Europe." (Comedy Central's video of Jim Gaffigan can be found here, just saw him last night at the Hard Rock, great show)

As a criminal defense attorney, I get the occasional emergency question like, "the police are at my front door, should I open the door?" As a general rule, American citizens are not required to get up from the sofa, pause the football game, put on some pants, and answer the door. There is nothing in the Constitution that requires us to answer the door. But, if you DON'T answer the door--and the police happen to have a warrant--your front door may cease to exist. And with that caveat, we're going to discuss law enforcement breaking down doors.

The police may break down a front door to a home under emergency circumstances, but that's not the type of break down we're talking about here. We're talking about those times when the police have a warrant. Florida has a "knock and announce" rule, found in Section 933.09 of the Florida Statutes, and it reads as follows "The officer may break open any outer door, inner door or window of a house, or any part of a house or anything therein, to execute the warrant, if after due notice of the officer's authority and purpose he or she is refused admittance to said house or access to anything therein."

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The Government Cannot Knock on any Front Door They Choose

no trespassing.jpgI grew up in a great neighborhood, full of kids who liked to play kickball and soccer. Now, when you combine balls and kids, you end up with broken windows, and having to jump fences to retrieve a stray ball. The problem is, some neighbors were downright nasty. You did not want to go into certain neighbor's yards. So, those retrieval missions were tension filled, and only the bravest of us would risk retrieval from a grumpy neighbors backyard (basically, someone other than myself). My point here is that, even as a kid, we were able to determine which houses seem inviting, and which houses seemed off limits. And with that preamble, let's delve into the case of the day.

In Bainter v. State, the defendant was charged with cultivation of cannabis (a grow house, basically). 135 So. 3d 517 (Fla. 5th DCA 2014). Bainter lived on several acres of property, all of which was surrounded by a barbed-wire fence. Did I mention barbed-wire? Would you knock on the front door of a house surrounded by barbed-wire? Anyway, there's more. The driveway had a chain-link push gate, and a "no trespassing" sign. Supposedly, the police received an anonymous tip that marijuana was being grown in the home. Given the barbed-wire fence, I don't think this would come as a surprise to anyone that "something" was going on inside this house. Could be kids in there whose pictures are on the sides of milk cartons, could be ten other things--but "something", right?

In this case, Bainter was the victim of a common police tactic known as a "knock and talk" [see below]. The police did not have a warrant. The police did not have consent to enter the property. So, they knocked on the front door, and eventually seized a bunch of cannabis. As any good defense attorney would do, Bainter's attorney filed a Motion to Suppress, based upon our Fourth Amendment guarantee "to be secure in [our] persons, houses, papers, and effects, against unreasonable searches and seizures". (United States Constitution, in case you didn't know)

The trial judge who heard the motion to suppress denied the motion because the front gate was open, reasoning that, at the time of the government's entry, "the gate was clearly open". Bainter, at 519. This judge assumed that an open gate translates into no expectation of privacy, everybody--come on in! What the judge failed to realize is that we American's have a right to our privacy, and Bainter's home clearly established that via its "no trespassing"' signs, chain linked fencing, and barbed-wire (should be a dead giveaway, right?).

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Justice on Appeal Can Be Tough to Find

Many folks familiar with the criminal "justice" system are under the mistaken impression that, should something go wrong with their case, they can always appeal the issue later. There is a sliver of truth to that, but I wouldn't want to get anyone's hopes up that an appeal somehow fixes the injustice suffered. It doesn't work that way. To prove this little known fact to you, we're going to take a look at another case involving the brilliant Judge Charles Harris from the Fifth District Court of Appeals.

The case for today is Jenkins v. State, 747 So.2d 997 (Fla. 5th DCA 1999). For purposes of our discussion, here's a USA Today version of the facts. Jenkins was convicted of armed robbery with a weapon, all for snatching a purse while he was riding by as a passenger in a car. In Florida, snatching a purse becomes extremely serious if the robber is armed with a weapon. For Jenkins, he was convicted of "carrying" a weapon--a car. Florida statutes enhance a robbery "if in the course of committing the robbery the offender carried a weapon."

The issue on appeal for Jenkins is whether or not he "carried" a weapon (car) when he snatched the purse. This is not a question for the jury, this question is a matter of law, in that, can a car "ever" be a weapon carried in a robbery? Common sense tells us that Jenkins did not "carry" the vehicle, but rather, the vehicle was merely his transportation to and from the robbery. Jenkins was a passenger. X-Men fans may argue that Jenkins was a guinea pig in some military black ops project which enhanced his strength to the point that he could actually "carry" a vehicle and swing it around. But that's not the case here. Jenkins was merely a passenger in the vehicle, and snatched a purse as he rode by. However, because Jenkins' robbery was enhanced by "carrying" a weapon, it became a first degree felony, for which Jenkins received a 20 year prison sentence. Ouch.

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Justice vs. Procedure

scales.jpgIt's time for me to stroke you, dear reader. Congratulations for exposing yourself to important justice issues, issues that corporate news networks either do not have the time, or intelligence, to report. And, if you need further stroking, simply donate to any popular Hollywood cause--the accompanying "gala" will involve an orgy of "important" folks telling each other how important they are. Yes, the view from the back of a limo is rarely accurate, but often entertaining (especially upon exiting with a short skirt--don't they see all those cameras out there?). Anyway.

There has been a long standing battle between those in favor of justice, and those who favor procedure. To understand this fight, we'll use the real life case of Woodbury v. State. 730 So. 2d 354 (Fla. 5th DCA 1999) Woodbury was convicted of a felony drug offense. His criminal defense attorney filed a one page Motion to Suppress, arguing an illegal search of the vehicle in which Woodbury was a passenger. The problem with the defense attorney's argument was that he left out one important argument; an argument that would have won Woodbury's case. Ouch. Well, isn't that why we have appeals courts? Shouldn't an appeal restore justice? Isn't that the job of appellate judges?

Here's the problem. The appellate court may only review arguments made by the initial defense attorney. If the first attorney didn't make the proper argument, the appeals court will not consider an additional argument--even though they know a costly mistake was made. That's what happened to Woodbury. The appeals court acknowledged that Woodbury's search was completely unconstitutional. As such, Woodbury was wrongfully convicted of a felony drug offense. The appellate court's opinion points out what the defense attorney did wrong on his motion: "the core question here should have been whether a dog alert on a vehicle, in and of itself, authorizes the arrest and search of all the occupants of that vehicle. The answer is no. . . . Unfortunately, the motion to suppress failed to clearly state this reason as a basis for suppression . . . [n]or did counsel ever present argument to the trial court that the search of Woodbury's person based only on the dog alert on the vehicle was improper." Id. at 356 [emphasis added]

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Explain This

sky night.jpgI love Carl Sagan. He had a childlike wonder for the vastness of space and time, but sort of glossed over important things like freewill and consciousness. I think it was Sagan that first said something like, 'we're all made of stardust'. Pretty cool concept. And, even though the atoms that make up my body were once the waste product of some star, I'd like to know how these lifeless atoms became consciousness.

First off, maybe I'm asking the wrong question. My question presumes that there is such a thing as consciousness, so we could attack this problem by simply denying the existence of consciousness. There are several ways to do this. For example, you could claim that so many things are conscious, that the term becomes meaningless. After all, isn't the 7-eleven gas pump "conscious" of my credit card entering the little swipe gap, and so forth and so on? Well, this form of attack is slightly dishonest, as most of us should be able to agree that the one thing we know "for certain" is our own consciousness. Now, I can't speak for you--you may be a robot or some sort of trickery--but I know what "I am". I am conscious. Ok, so there's at least one vast collection of stardust that is officially conscious.

By the way, if all we really know for sure is that "I AM', this leads me even further off topic. When Moses was talking to God, he was curious as to God's name. A reasonable request, because maybe Moses was talking to an alien, or someone from another dimension, or who knows what. If I was talking to some scary strange voice, I would probably first wet myself (just being honest), and second, ask "Who are you? What are you?" I love the response found in Exodus 3:14: "Now they may say to me, 'What is His name?' What shall I say to them?" 14 God said to Moses, "I AM WHO I AM"; and He said, "Thus you shall say to the sons of Israel, 'I AM has sent me to you.'" Does a name get any better than I Am? (Maybe this name was some sort of hint as to the essence of God)

Back to the task at hand. We start with some lifeless stuff. Atoms. We end up with consciousness. Can evolutionary biology tell us how consciousness got here? Well, we all know there was a big bang, then bacteria, then billions of years of natural selection, then "I am". From a purely scientific viewpoint, why should atoms bother to organize into a conscious being? Seems pretty pointless. Sure, you can find my personal opinion in the New Testament, but it would be interesting to hear a purely physical explanation for the existence of consciousness.

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Where Will Red Light Camera Tickets Go From Here?

green light 2.jpgThe case of the City of Hollywood v. Eric Arem case has sounded the death knell for red light camera citations all across Florida, in that the Fourth DCA has dismissed all citations because the City of Hollywood was subcontracting their citation writing to a third party company, and these duties cannot be delegated under current law. I discussed the details of this case a few days ago in an article you can find here, but our celebration may be short lived, as I'm sure the legislature will soon catch wind of this decision and re-write the statutes accordingly (we're talking about money, after all). Even after a change in the law, I still see problems for red light camera citations. So, let's briefly review how judges have bent over backwards to enforce these citations, and then how, eventually, these citations are bound to fail.

In the beginning, the focus of a red light camera defense involved keeping the video evidence out. Red light camera citations are all caught on video, so if the video doesn't come into evidence, the case must be dismissed. For those of you unfamiliar with a courtroom, we attorneys cannot simply approach the DVD player and push play. We must use testimony to establish that the video we are playing is a fair and accurate representation. The problem for the state is, law enforcement only has a few officers appear for these hearings. There is no one at the hearing from the camera company to testify about the installation, the calibration of the speed detector in the camera, or proof as to the equipment's condition (Is it in working order? When is it scheduled to be maintained?). So, the officers cannot establish the admissibility of their videos, but unfortunately, most judges will ignore the law and go ahead and play the video tape.

The defense attorney may then claim that the red light citation itself is invalid because it does not comply with the Florida Statutes. Citations must be mailed and then sent certified mail to the defendant. Do the officers at the hearing have any proof that this has been done? No. The officer may have a copy of the on line notice and the online ticket, photos and video. This is not enough to prove the notice requirements were complied with, but most judges disagree and shift the burden to the defendant to prove the government has failed to provide notice. Again, the judge is simply going to say "objection overruled, play the video".

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Red Light Cameras May Soon Be a Thing of the Past

red light5.jpgSome folks would say that technology has made our lives better. After all, without video cameras in the hands of citizens, there would be no way to refute an officer's testimony. And, the DNA testing of evidence in old rape cases has proven quite effective in setting hundreds of innocent inmates free, after decades behind bars. But, technology has also created it's fair share of problems, the most glaring of which has been the fact that fewer human labor hours are needed when a computer can answer a phone, or an automated system can provide customer service, or a few robots can build a car or manage a warehouse once full of employees. Even worse than this, however, is the fact that computers may one day be able to solve problems at a high level, taking the place of doctors, engineers, and lawyers (known as the P vs. NP problem). Sure, you're probably thinking this is just another pointless rant, but stay with me, I'm about to tie this into the red light camera problem.

A huge decision came down yesterday on the red light camera issue. In the case of City of Hollywood & State of Florida vs. Eric Arem (Fla. 4th DCA 2014, October 15, 2014, 4D12-1312), Mr. Arem appealed his conviction under Section 316.0083, formally known as the Mark Wandall Traffic Safety Program, a statute that authorizes local governments to use red light cameras to enforce violations of Section 316.074(1) and 316.075(1)(c)1 (laws prohibiting running a red light).

Now, the real problem lies in how local governments are enforcing these violations. The City of Hollywood (like most Florida cities with these cameras), subcontracted their red light enforcement to "American Traffic Solutions (ATS). ATS provides a one stop shop for these camera systems; they install the cameras, their computer monitors the recorded images, their computer uncovers potential violators, and their computer decides which images will be forwarded to law enforcement. The city will then review the images, and click an "accept" button if they would like ATS to print and mail the vehicle owner a citation. If the owner fails to pay the initial violation notice, ATS's computers will detect the non-payment, and automatically generate a uniform traffic citation, complete with a computer generated signature of a traffic infraction officer (TIEO).

Remember what I said about technology taking over everything?

I've oversimplified the process, but the problem the court had with this is simple: "only law enforcement officers and traffic enforcement officers have the legal authority to issue citations for traffic infractions, which means only law enforcement officers and traffic enforcement officers are entitled to determine who gets prosecuted for red light violation." Id. at 7. Now, things get a little muddy, because Florida law does "permit cities to delegate the review of information obtained from a traffic infraction detector, it [does] not permit cities to delegate their authority to issue any resulting traffic citations anywhere in these statutes." Id. And, that's exactly what ATS is doing, issuing multiple citations. The district court of appeals detailed the problem as this:

"For all practical purposes, it is the vendor that decides which cases the TIEO gets to review; it is the vendor who initially determines who is subject to prosecution for a red light violation; it is the vendor that obtains the information necessary for the completion of the citation; it is the vendor that creates the actual citation; it is the vendor that issues the citation to the registered owner of the vehicle; and, it is the vendor that eventually transmits the traffic citation data to the court . . . . Under these circumstances, it cannot be said that this is the legal equivalent of a TIEO (traffic infraction officer) issuing the citation, especially when it is the third-party vendor that controls what information is, or is not, made available for the officer's consideration."

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How SpaghettiOs Can Get You Arrested

spaghetti.jpgModern technology has blessed us with the ability to question law enforcement in more ways than ever before. We no longer need to "take their word for it". For example, video cameras are on every cell phone. Videos of cops abusing citizens now have their own channels on YouTube.

Video may be the great equalizer, but another technological advancement that has contributed to our freedom is laboratory analysis. Yes, folks who have spent most of their adult lives in prison for rapes they did not commit, have been freed by the analysis of physical evidence years later (DNA, for example. I've written some articles about these tear jerking Shawshank stories, which you can find here).

But, what happens when the police do not utilize technology? What happens when the dash cam on the police car "isn't working", or "wasn't turned on"? Unfortunately, what happens is that the police rely on their "training and experience". Whenever you hear an officer utter the words "based upon my training and experience", here's the translation: "I'm about to make something up", or, "I have no evidence to support what I'm about to say". Lots of bad things happen when officers rely on their 'training and experience', rather than on science, or even good detective work. Orlando is seeing numerous arrests for possession of prescription medications, especially pain pills, and many of these folks have a valid prescription (who wants to carry around a bottle of 180 oxycodone's when you can put a few in your pocket, men don't have that carrying capacity in their jeans). Now, a simple call to the 24 hour Walgreens would solve the case, but the road patrol officers making these felony arrests are not interested in lifting a finger. One phone call is simply too much to ask. Arrest now, ask questions later. The taxpayers will pick up the bill, and never complain.

The lack of any sort of investigation on the part of law enforcement in drug cases is now at epidemic levels. And this brings us to the case of the day, Ashley Huff. She was arrested in Gainsville (GA) for possession of methamphetamine after permitting a search of her car. The search revealed a plastic baggie in her purse, with the name "Ashley" on it, plus a spoon was in the bag. Ah ha! A spoon! She must be cooking meth, right? Not only did they find a spoon, but the police indicated that Ashley began to get "nervous" when they found the spoon. Boy, I'm sure these officers thought they had a slam dunk felony drug case now. But wait, it gets better. The spoon had a "clear, crystal-like substance" on it. Guilty as charged, why even get the court system involved at this point? After all, 'based on the officer's training and experience' the "clear, crystal-like substance" was methamphetamine.

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Can PTI Be Revoked For a New Arrest?

avoid potholes.jpgThere's a couple things you should know about human nature before we delve into the case law today. First, there's the ever present Murphy's Law. I don't agree that "Anything that can go wrong, will go wrong", but, I can't deny the bumper sticker truth of "Sh** Happens". And, while we're talking bumper stickers, I prefer the "If Anything Can Go Well, It Will". That being said, I'm here to tell you that once the government gets involved in your life, you're probably operating under Murphy's Law, and not the more fuzzy positive laws out there. It seems to me that the government just doesn't attract positivity to anyone's lives (yes, that's a tad pessimistic, and I have no statistics to back that up).

Remember, American "justice" incarcerates more human beings than any other government on planet earth. Even more than China's "published rates". And sure, some countries probably just put folks before a firing squad rather than incarcerate them for life. I get that. So, these incarceration statistics don't tell the whole story, but they're still pretty scary. And, Florida's incarceration rate ranks our state in the Top Ten of all the countries in the world. Yes, business is good. But no, I'm not proud of this.

The good news is, first time offenders have several options that provide a glimmer of hope. First offenders are eligible for programs designed to dismiss all charges--once the citizen completes community service and drug treatment. Usually, these programs are run by the prosecutor's office, and are called things like "pretrial diversion (PTD)", pretrial intervention (PTI), or County Diversion Program (CDP). Whatever the title, they all fall under the general heading of "diversion programs". The prosecutors control the vast majority of these programs, but some programs may be initiated by the judge (even if the state disagrees; click here for more info). In Orange County, Seminole County, and Osceola County, the prosecutors run their own "diversion" programs that require a few hoops to be jumped through, and then the case is dismissed (even DUI's). It's a beautiful thing. The question is, what power does the prosecutor have in revoking diversion, once a citizen is enrolled?

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How Cameras Affect Police Behavior

September 18, 2014 by The Law Office of John Guidry II

camera warning.jpgEveryone now has phones with cameras, and the world is not necessarily a better place as a result. For example, we've seen huge declines in topless sunbathers in France, for fear that "you can end up topless on your own Facebook wall." [ See "The Real Reason French Women Have Stopped Sunbathing Topless, The Guardian, Morwenna Ferrier, July 28, 2014] This is sad development, indeed.

Modern technology is now in the hands of the police. No, I'm not speaking of mine-resistant ambush protected armored vehicles (MRAPs)--police departments actually own such things--but I'm talking basic, cheap technology--like video cameras. Some police now have video cameras in their police cars, and "body cams" on their chest. Is this a good thing? Yes, and no. Here's why. Video not only protects citizens--video can reveal the truth (who could possibly be against "truth"?). Video also provides accountability, and, it may even tame the nasty customer service skills of some officers.

When I started defending criminal cases back in 1993, the Orange County Sheriff's Office began experimenting with video cameras in patrol vehicles. Guess what happened? We defense attorneys started winning more DUI trials. Why? Without video, the officer (shiny badge and trained to testify) went before the jury and describe the defendant's drunken state. The jury leaned in, and believed every word. With video, the jury was no longer required to "take the officer's word for it". They could see it for themselves, and the drivers looked far better than the officer's description. So, guess what? The sheriff's office pulled all the video cameras from their vehicles. Well, almost all. Through some miracle of science, an occasional DUI video would pop into existence out of nowhere--but only if the driver was falling down drunk, vomiting. Yes, vomit was about the only thing video taped by early dash cams, and they came out of nowhere. Hey, I guess if some people believe our gigantic universe popped into existence from nowhere, how hard is it to believe that a tiny little video can come from nowhere?

The good news is, times are changing. There are more videos than ever. Unfortunately, some police officers have learned how to work the video system. The new trick is to testify on the video to things that can't, necessarily, be seen. A few common catch phrases are:

"Stop resisting, stop resisting!" (reminds me of "stop hitting yourself")

"I saw the dope, where did you hide it?"

"Stop trying to take my gun" (click here to see a video of cop yelling 'stop trying to take my gun', when, in fact, the man's hands were in the air. Cops hid the video--but when it was found--cops were fired and indicted for fraud)

"It's Coming Right For Us" - South Park episode, in order to avoid Colorado hunting laws, hunters can shoot animals out of season in "self-defense", so Cartman and the gang are taught to yell "it's coming right for us" before every shot fired. No, this isn't really related to the topic of the day.

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Another Bogus Loitering & Prowling Charge Dismissed

September 14, 2014 by The Law Office of John Guidry II

crowbar.jpgMany folks live with a constant fear of police abuse. From what I've seen over the years, that fear is completely understandable, depending upon location, and economic standings. And, there are several different ways law enforcement abuse we citizens. Some ways are subtle, like the "I smell the odor of cannabis, so I'm going to search your car" routine. This has never happened to my white 98 year old grandpa, but it does happen to my teenage black clients. Now, part of this may be due to the fact that my grandpa doesn't smoke weed (that I know of). And also, it is shocking (even to me) that my grandfather is still driving at his age (but the DMV renewed his license through age 103--so go figure). Aside from the "I smell weed" searches, I also see plenty of abuse via loitering and prowling arrests. Most judges are fairly suspicious of loitering cases, and they have good reason for such concern. One appeals court put it this way:

"Because of its potential for abuse, the loitering and prowling statute must be applied with special care. It cannot be emphasized enough that the loitering and prowling statute is not to be used as a "catchall" provision whereby police may arrest citizens where there is no other basis which would justify their detention. Instead, the proper application of this statute requires a delicate balancing between the protection of the rights of individuals and the protection of individual citizens from imminent criminal danger to their persons or property." Mills v. State, 58 So. 3d 936, 939 (Fla. 2d DCA 2011).

So, armed with a bit of healthy skepticism, let's take a look at a recent loitering and prowling case of C.C. v. State. 137 So. 3d 466 (Fla. 4th DCA 2014).

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Florida's DHSMV picks a fight with County Court Judges

dmv memo.JPGFor those of you that have kids, you've heard the phrase "no, I won't do it." Well, most kids don't really say "no, I'm not going to do that", but if you listen close to their responses, a parental translation of statements like "when I'm done watching this show" or "I've got homework to do" translates to just about the same thing as "whatever you are asking, I'm not going to do it".

This sort of immature response happens in government as well. Executive orders are drafted by presidents, on things that should have been voted on by the people's representatives. And, governmental agencies pass "regulations" that can send you to jail, even though our legislature and governor never approved such. And, these sort of government tiffs occur even on the smallest of scales. Take, for example, the dispute between Florida's county court judges, and Florida's Department of Highway Safety and Motor Vehicles (DHSMV).

Now, I know what you're thinking--how can one government organization tell another "No, I'm not going to do that"? Well, because it is possible that government officials are reading this article, especially DHSMV folks, and because these workers may not recall the finer points of their middle school political science class--here's a one sentence review. The United States has this thing called separation of powers, and that means that the legislative branch passes laws, the executive branch carries out these laws, and the judicial branch has the final say as far as the interpretation of these laws. Yes, somebody has to have the last word, and it's the judicial branch.

[background info: on traffic cases, criminal or civil, a "conviction" will lead to points being assessed on your driving record, but a "withhold of adjudication" will not lead to points on the driving record, because a "withhold" means--technically--that you were not convicted of the traffic violation. FYI]

Florida's DHSMV fired the first shot at county court judges when a DHSMV Chief, Maureen Johnson, sent a memorandum to all Florida Clerks of Court explaining that the DHSMV would be rejecting any Judge's withhold of adjudication for a CDL driver. The memorandum cites Florida Statute 318.14(9) as its basis, yet that statute only prohibits CDL drivers from electing driving school in order to get a withhold. The memo from DHSMV rejects all withholds for CDL drivers, not just the withholds received by electing the driving school. Now, think about this for a minute. You're a CDL driver. You challenge your citation in court, in front of a judge. That judge issues a withhold of adjudication, based upon the evidence and facts presented to the judge at the hearing. The DHSMV then rejects the judge's withhold of adjudication. As stated in the memorandum to all Florida clerks, the DHSMV doesn't care what the judge says, they're going to reject all withholds for CDL drivers.

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Possession of Alprazolam and Hydrocodone Convictions Overturned

perscription pill bottle.jpgYes, the title of this article gives away the ending, but it's the journey, not the destination.

FACTS: Daniel Shedd is just chilling, drinking a beer, driving his mom's car, when he was stopped by the Florida Highway Patrol (FHP). Shedd v. State, 137 So. 3d 456 (Fla. 4th DCA 2014). FHP chats him up, and Daniel reveals to the officer that he has a prescription pill habit. In case you didn't know, telling a cop you have a drug habit is like a sorority girl announcing to the frat party that she's a nymphomaniac--there's going to be some shenanigans as a result of this announcement. So, with Daniel's announcement comes the obligatory search of the car, and Daniel is arrested for possession of marijuana, possession of alprazolam (Xanax), and possession of hydrocodone (it's also a crime to have an open container of alcohol in the car, but I guess they let that one slide).

It never ceases to amaze me that people drinking a beer, and driving, drive horribly. If you're doing something wrong, can't you drive like a normal human being? Daniel takes it a step further, because not only is he driving bad and drinking--he has marijuana in the car, Xanax in the car, and hydrocodone in the car. It is possible that the Golden Coral buffet o' drugs in Daniel's car gave him a surge of poor driving adrenaline, just enough to draw law enforcement's attention. However, things started looking better for Daniel when he explained to the cop that the alprazolam and hydrocodone both belong to his mother (indeed, the car even belongs to mom).

Actually, not only did the pills belong to mom, the pill bottles had mom's name written on them. So, assuming the FHP officer could read, how hard can this be for FHP to verify? Unfortunately, the old "these drugs belong to my mom" routine doesn't always work, because law enforcement often lack the skills/desire/work ethic needed to do a simple investigation. If you think law enforcement investigations resemble that of NCIS or even Angela Landsbury, you're sadly mistaken. Investigations into felony prescription drug offenses are pretty rare. In this case, if FHP would have taken just a few minutes to contact mom and verify that the pills were hers, we taxpayers would not have had to pay for two felony drug arrests. But, why save taxpayers money? After all, can't we just raise the sales tax another ½ cent?

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Recorded Jail Calls Causing Problems Again

tape-recorder.jpgLet's face it, we have too many criminal cases, and not enough juries to try them. That's OK, because most cases never make it to trial. The legislature knows that the majority of criminal cases are plead to, so it is important to protect the plea process. As you will see below, there are several Florida laws designed to keep plea information away from the jury.

In Florida, we defense attorneys are not entitled to tell the jury about sentencing issues. It doesn't seem fair that the citizens are kept in the dark about the consequences of their verdict--but those are the rules. And, the difference between a plea and a loss at trial can be devastating. For example, almost twenty years ago, I was a public defender in front of Judge Conrad (great judge, but harsh). It was my first week in "felony", and I was shadowing my colleague, whose client was offered one month probation on a misdemeanor for a charges carrying a maximum of 45 years in prison. The client rejected the one month probationary offer and he lost at trial. Judge Conrad gave him 42 years in prison. I will never forget that. But, that's why some folks simply take a plea deal--even though they're innocent--because the risk of losing is too great.

So, we know that the jury is not entitled to hear anything about sentencing. Is the jury entitled to learn of plea negotiations? Can they hear anything connected to a plea? It doesn't seem fair to tell the jury about plea negotiations, knowing that they cannot be told about sentencing options. Take our case listed above. Would the jury have been horrified to discover a 42 year prison sentence after hearing about a one month probation offer?

The question for the day is, to what extent can a jury be told of plea negotiations?

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