Don't Have $35? How About an Arrest for Failure to Register as a Sex Offender?

IMG_1087.JPGForgive me for stating the obvious, but a criminal record will hurt your employment opportunities. A petit theft charge, for example, will limit job opportunities in retail stores because most retail stores suffer the majority of their losses at the hands of their employees--so these stores prefer to hire someone with a record of driving on a suspended license or marijuana possession, rather than theft.

And, while theft charges can put a dent in things, being a sex offender absolutely crushes any hope of ever being employed again. Period. Not a dishwasher (not that there's anything wrong with that). Not flipping burgers, rolling burritos--nothing. Not only can sex offenders not find employment (double negative? Maybe not), good luck finding a place to live that isn't within a 1000 feet of a school or playground. I've seen city's set up playgrounds just to drive out sex offenders--so much for liberty and freedom to travel.

It should come as no surprise that the bleak employment prospects of sex offenders also translate into a life of living under bridges, and having no money (redundant, I know). To add insult to injury, when a sex offender moves from sleeping under one bridge to sleeping under another bridge, this change of address requires government intervention. You anti-government folks (me?) should be jumping up and down when the government tacks on requirements to a citizens' movements once they've completed their prison time and probation.

So, a sex offender is required to do two things within 48 hours of any sort of overnight movements. First, Florida Statute 943.0435 requires the offender to register his change of address with the local sheriff's office. The sheriff's office will photograph the offender, take down the new address, and take fingerprints. Now, when I say change of address, I don't mean the kind of change of address that we free citizens think of. For example, this past weekend my significant other and I drove down to Cedar Key for several days. That trip to Cedar Key would be a "temporary change of address" requiring fingerprints, new pictures, the whole nine yards in both locations--the place that I'm leaving and Cedar Key. Sounds un-American, right? All of this for folks that have already paid their debt to society, served their prison time, served their probation time, and served their Jimmy Ryce Act involuntary hospitalization for treatment (many of my clients who have endured being Jimmy Ryce'd find it worse than prison, but that's a story for another day).

[PHOTO: I took this shot in St. Croix, just over a year ago, it's one of the many places I imagine my self sitting there and doing nothing]

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A New Arrest Does Not Prove a Violation of Probation

stop sign driving.jpgViolations of probation can be difficult to prove, and this is especially true of VOP's based upon a new arrest. An arrest is certainly enough to have a judge sign a No Bond VOP warrant, but the State will have to present more evidence than just a new arrest to sustain a VOP conviction. In summary: yes, you will be arrested for violating your probation based upon a new arrest--but no, the arrest alone is not enough to convict. To see how this plays out in real life, let's take a look at Prater v. State, 2014 WL 2968842 (Fla. 5th DCA 2014).

BACKGROUND INFO: Prater was placed on probation after entering a plea to aggravated battery with a deadly weapon, and aggravated assault. He received 15 years of probation. Yes, I said fifteen. We all know that the Pope himself cannot successfully complete 15 years of probation. Some judges are well aware of this statistical fact, and impose long terms of probation for just that reason. One Orange County judge affectionately refers to probation as an "Early DOC Entry Program", designed for those defendants that are not willing to take prison up front--just give them enough rope to hang themselves, and you can give them prison on the violation. Naturally, I don't agree with giving clients sentences that they cannot handle; but then again, what I want doesn't matter much. If a client wants something I know they can't handle, I'll try to negotiate comfortable options (jail?), but that's all I can do. Too many lawyers out there think the clients work for them. Obviously, that's not the case. I work for defendants. They tell me what to do, and I have to follow their lead even when my violation-radar is telling me that a probation plea is a bad idea. Anyway.

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A Downward Departure for an Unsophisticated Crime

Thumbnail image for IMG_0205.JPGAs you know, judges have an obligation to hand down "just" sentences. This is not an easy task, because our elected officials have meddled in the sentencing process, and created laws that are simply too harsh for the crime committed. When judges are confronted with a potential sentencing injustice, they have an escape valve known as a downward departure. In essence, if a defense attorney can convince the judge that certain mitigating circumstances are present, a trial judge may "downward depart" from the sentencing guidelines (so, if the legislature says the defendant must serve 10 years prison, the judge may 'downward depart' to give something lower, like 5 years prison, for reasons discussed below).

Sex offenses are the unofficial targets of ridiculous sentencing guidelines. For those of you who pay too much in taxes (all of you who actually pay taxes?), rest assured that sex offenses are that giant sucking sound Ross Perot thought he heard coming out of Mexico. But hey, why pay teachers the money they deserve when we can, instead, spend another $43,285/year housing a guy in prison for looking child porn? The sentence for possessing several hundred child pornographic images will exceed the minimum mandatory sentence given to a child molester, a rapist, and even some murderers (for more info, see my article found here).

How can we possibly stop the insanity? Judges look to the downward departure rules to help impose more reasonable sentences. To understand the kind of battles that ensue on the rare occasion that a judge departs on a sex case, let's take a look at the downward departure found in State v. Davis, 141 So. 1230 (1st DCA 2014). Here's what happened. Davis responded to an adults only dating website, specifically, to a 32 year old's ad claiming that she and her "little sister" were in town, looking to have fun tonight. Naturally, the ad makes no mention as to how old the 32 year old's sister really is, so Mr. Davis answers the ad. And, you know the rest of the story, but I'll say it anyway. The 32 year old was actually a detective of unknown age (though, I presume of legal age, it's hard to make detective by age 16). And, the promised ménage a trois (all the French I know, plus a few lines out of "Lady Marmalade") is only twisted into something criminal once the detective has Davis hooked.

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Where There's Smoke, There's Fire

basketball court.JPGI had an argument recently with a prosecutor (shocking, I know), and much of her reasoning centered around her repetition of the cliche "where there's smoke, there's fire". The problem with such clichés is that the other side is basically acknowledging that they cannot respond to your position with any sort of intellectual vigor. Cliché's avoid substantive arguments--and I'm in the business of making such arguments.

Our case for today is A.B. v. State, 141 So. 3d 647 (Fla. 4th DCA 2014). Here's the scene: kids playing basketball at a city park, having a good time. Some kids are watching the game, some are on the court playing. The kids playing have left their cell phones and wallets off to the side of the court. At some point, the players noticed a couple of kids running from the area where they left their wallets and cell phones. Sure, enough, their stuff was gone. A.B. was one of the kids running away.

I know what you're thinking, why run away if you've done nothing wrong, right? Well, remember, its kids we're dealing with, that's why we can't use the defendant's actual name, we have to use initials. Somehow, the cops caught up with A.B. about two weeks after the incident, and he told the officer "I can't believe I am going down for this alone". Id. at 648. Now, even if you believe what the officer says A.B. said (I often don't, unless it's recorded--every officer carries a recorder/cell phone), this statement isn't quite a confession. It may be admission that he knows who did it, but it's not quite a confession. The juvenile further explained that his friend issued the following command: "When I run, you run". Assuming A.B's friend is not some sort of pyrotechnical engineer about to launch a 4th of July Jubilee, this sort of statement is the universe's way of telling you "some shit is about to go down". Again, we're dealing with kids here, and this statement probably resulted in a response like "uh, ok, huh" (think Beavis & Butthead).

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How to Search a Home with Zero Accountability

ky home.jpgAccountability is an important part of the relationship between our government and its citizens. Sure, we citizens can't know everything, and that's why a small percentage of our budget is known as the "Black Budget". Black budgets are fine, so long as they represent some covert operations overseas trying to capture the terrorists de jour. But, there are also times when the government shows up at your front door. In cases like this, you would expect some accountability.

Hopefully, you've never had your house ransacked by 15 storm troopers at 3:30 a.m. I haven't either, but I've seen pictures, and these homes are left a wreck (home search warrants are often conducted while you are sleeping, FYI). This sort of invasion of privacy can leave quite a scar. Imagine waking up to lots of guns and men with deep football coach voices barking out orders to remain still. A search warrant requires the home occupants to sit there in their undies (or less) while 12+ armed men proceed to stare at your significant other's revealing sleepwear. No, you can't put clothes on, as any search for clothing may just be an attempt to destroy evidence or find a gun. As you might expect from a male dominated endeavor like a home search, somehow overweight men are permitted to put on some clothes, but the ladies are required to simply hang out in their revealing nighties--while a dozen men take turns gawking. I'm just saying.

Anyway, such massive government invasions will leave a citizen asking the simple, age old question "Why?" Believe it or not, under current Florida law you are not entitled to know why. Yes, this is a ridiculous law, and I'm here to expose it.

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More Injustice From Minimum Mandatory Sentences

flag tattered.jpgHow long had human beings been ruled by Kings, Queens, Pharaohs, and the like? Then along comes the first big experiment in governance--we Americans decided to rule ourselves. Now, for this experiment to work, the powers that corrupt must be separated, so as to provide a check on each other's behavior. And this, my friends, is straight out of your fourth grade government textbook, the one with the big flag on the front.

The judicial branch has long held the awesome responsibility of sentencing citizens when they break the law. Judges are in the best position to understand all the facts and circumstances surrounding an offense, so they can best decide the consequences. Unfortunately, the legislative branch decided that judges are not doing a good enough job at sentencing, so our elected officials created "minimum mandatory sentences". If a person is found guilty of committing such an offense, the judge has no sentencing discretion--the judge must impose the minimum mandatory sentence. For example, if you are caught with enough weed, you would be "trafficking in cannabis", and sentenced to a 3 year minimum mandatory prison sentence. The judge would have no option to go lower than three years prison.

But wait, there's more. The Florida legislature has set forth some conditions under which, if all the planets align, a citizen may petition the judge for a lower sentence than the minimum mandatory. We call this a "downward departure" sentence, and the rules governing a downward departure can be found in Florida Statute 921.0026. This statute lists over 10 circumstances under which a judge may depart, such as (1) pursuant to a plea bargain, (2) defendant requires specialized treatment for a mental disorder, (3) the victim provoked the incident, (4) the defendant was too young at the time to appreciate the consequences of the offense, or (5) the defendant played a minor role in the offense.

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Restitution Is Tough To Prove

jewelry.jpgSome people are clueless when it comes to what things are worth. We all have that friend who claims his home is worth twice what we all know it is worth. And, these are typically the same people that decide to sell their home "By Owner"; after refusing to believe several real estate agents who have told them that their home is worth half what they think it. This (possibly genetic) inability to value things doesn't really bother me, we criminal defense attorneys see this sort of thing all the time. People think they have won the lottery whenever they are wronged in some way. Every petit theft case, every grand theft case, every criminal mischief case, every robbery case reaches a point in which the prosecutor tries to explain their victim's "restitution amount" with a straight face. If your client steals the jacket off someone's back, that's rude and unacceptable (especially on a cold night), but it's entertaining to hear about the fact that Kurt Kobain gave him the jacket right before he killed himself and thus, it's worth thousands of dollars (after all, people give away their stuff before they.....anyway). The stories are endless, and it is up to we defense attorneys to inject some sort of sanity into coming up with a reasonable restitution amount.

Our case of the day is Phillips v. State, 141 So. 3d 702 (Fla. 4th DCA 2014). This case will sound like a million other cases out there in which something of value was stolen, and the prosecutors call the victim to testify about the value of the stolen goods. Yes, victims are allowed to tell the court how much their stuff was worth, but no, they may not base their testimony on hearsay--what someone else told them their stuff was worth. In Phillips, jewelry was stolen, and the victim testified that she examined six different websites to arrive at the values for her stolen pieces of jewelry. Basically, the victim averaged the six prices found online to come up with what she considered the market value of her stolen jewelry. Yes, your hearsay alarms should be going off by now, as any testimony found "on a website" is 100% hearsay. And Phillips' defense attorney objected on those grounds, but those objections were overruled. The defense appealed, and here's what the appellate court had to say.

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Judge Cannot Ban Early Termination of Probation

earth moon.jpgIt's always difficult to predict how punish will affect a defendant. And, it is somewhat life affirming when a judge discovers that supervision through the Department of "Corrections" has actually "corrected" the situation. When this happens, Florida law permits a judge to terminate probation early. After all, we are not robots--we can change our ways, I think (or, at least know the right things to say...). Yes, there are those folks who have completed their treatment, completed their community service hours, and passed all of their polygraph exams--only to find themselves on probation forever. Yes, I'm talking about the Least of Our Brothers (for all you Christians out there), sex offenders.

This is 2015, and sometimes punishment "works". A drug addict gets treatment, and stops using. A sex offender spends years in a Jimmy Ryce Act hospital, and is cleared for release. When our criminal justice system works, the folks in charge of supervising defendants--the Department of Corrections--occasionally recommend to the judge that she terminate the defendant's probation. Who better to recognize when a defendant has completed his probation than the person meeting with him every month?

[philosophy side bar - determinism - Einstein did not believe that criminals were responsible for their actions, because his deterministic view held that humans do not have free will-- we are merely complex assemblies of matter interacting according to the laws of physics, and if we knew enough about these movements, we could predict the outcome, much like throwing a ball across the room. "Human beings in their thinking, feeling and acting are not free but are as causally bound as the stars in their motions". Thus, a sex offender is destined to become a sex offender, as he has no free will to act otherwise, any more than the Earth may chose a different orbit around the sun. As a practical matter, Einstein confessed that "I am compelled to act as if free will existed, because if I wish to live in a civilized society I must act responsibly . . . I know that philosophically a murderer is not responsible for his crime, but I prefer not to take tea with him."]

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How Shoplifting Can Become Robbery

shirts.jpgSometimes, the heat of the moment transforms something stupid into something tragic. I've seen road rage transform into a prison term, and I've seen shoplifting upgraded to robbery. Now, it should come as no surprise that law enforcement's creative juices are often peaking when they sit down at their laptop to type up the list of charges and "facts" (imagine a Nat Geo slow-mo shot of a butterfly emerging from his cocoon, except this isn't such a beautiful thing).

It would be unfair to single out shoplifting and robbery charges for police exaggeration. Just sit outside a nightclub in downtown Orlando and you'll see plenty of misdemeanor disorderly intoxication charges blossom into felony battery on a LEO charges. Or, how about the classic misdemeanor urinating in public? You can't have a decent club scene like Orlando's, without a steady stream of urinating charges just after the bars shut down. So, it should come as no surprise to you that law enforcement manage to find 16 year old kids who happened to see you relieve yourself. Congratulations, this urinating in public charge is now a lewd or lascivious exhibition; a second degree felony carrying a lifetime of sex offender registrations ('Shake it once, that's fine. Shake it twice, that's okay. Shake it three times, you're playing with yourself...'). Ok, back to shoplifting and robbery.

The case for today is Rockmore v. State. 140 So. 3d 979 (Fla. 2014) Rockmore was found guilty of robbery from a Walmart after a shoplifting incident. To understand why this case is important to our discussion of misdemeanors upgrading to felonies, keep in mind that a robbery is simply a theft that includes force either during, or after, the taking. To get a robbery, you need a continuous thieving event. To throw a wrench in this, what happens when the thief abandons the taking and uses force after abandoning the theft? Let's find out.

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What Should Happen at a Bond Reduction Hearing?

cash money.jpgLots of inmates are looking for a bond reduction. For reasons unbeknownst to me, some judges just hand out ridiculously high bonds. So, bond reductions are a popular, and necessary. Also, bond amounts are not the only crazy aspect of bail, I've seen drug cases that require a defendant to be drug tested three (3!!) times a week. Yikes. But bond "conditions" are a topic for another day. Today, we're going to take a look at how a defendant's current financial situation plays into the bond setting decision. When an attorney knows that an inmate cannot afford the current bond, a Motion to Reduce Bond is filed in the hopes that the court will reduce the bond to something more affordable. So, let's examine how one particular judge's bond reduction was found to be improper because a defendant's finances were not factored into the equation.

Today's case is Sylvester v. State, 39 Fla. L. Weekly D 1194 (Fla. 5th DCA 2014). Sylvester was arrested for first degree grand theft, scheming to defraud, and exploiting a disabled adult (it takes a theft of over $100,000 to transform grand theft into a first degree felony, fyi). Lots of fraud here, allegedly, and that translates into a high bond. Sylvester's bond was $250,000 per count, for a total of $750,000. Sylvester's Motion to Reduce bond was granted, but the judge only reduced the bond to $200,000 per count, for a grand total of $600,000. Sylvester wanted his bond reduced even further, so his defense attorney appealed the bond decision to a higher court (technically called a Petition for Writ of Habeas Corpus).

I'm going to spoil the ending here--the appeals court granted Sylvester's request, and ordered the judge to reconsider his bond reduction. To understand why, let's review the guidelines for bail, found in Florida Statute Section 903.046. The actual dollar amount of bond is not the only consideration, other conditions may be imposed, and all of this depends upon (1) the type of offense, (2) the strength of the evidence against the inmate, (3) the defendant's family ties to the community, (4) how long he's lived in the community, (5) work history, (6) personal finances, and (7) prior criminal history. Even more factors are listed in the statute, but we've got enough to work with here. In Sylvester's case, the court actually considered the basics, like the type of the offense, the evidence against Sylvester, his family ties, length of stay, work, and priors. However, the court did not consider Sylvester's financial situation.

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Follow My Commands, or Go To Jail

running model.jpgNobody likes to be bossed around, but plenty of people enjoy being bossy. Most of these bossy folks work for the government. The good thing about bossy people is that you don't necessarily have to listen to them. Sure, you may be fired if the person bossing you around is your supervisor at work. Or, you may die of a rare disease if you don't listen to a doctor ordering you to undergo some medical procedure. But, it is a tad odd that a kid that just graduated from a couple of months at a police academy can order you around--or you're going to jail. Law enforcement is one of the few professions in which their commands will land you in jail if you don't obey. Technically, this disobedience is called resisting an officer without violence. What an awesome power, right? Do as I say, or go to jail. Um, do you think this power gets abused? Well, what government power doesn't get abused?

So, it's a crime to disobey an officer's legal commands. I've seen resisting charges simply because a citizen doesn't respond fast enough to an officer's commands. Don't exit the car fast enough--arrested for resisting. Don't get off the phone fast enough when an officer wants to talk to you--going to jail for resisting. Don't feel like sticking around and talking to the police--you better start feeling like it, or you may be heading to jail. A "resisting" charge transforms a minor delay into a criminal act. Now, there are all sorts of defenses to a resisting charge, and more often than not, this charge is heaped on top of bogus charges just to make sure something sticks. When I see a resisting an officer without violence charge, I know bogosity is lurking nearby.

For example, let's take a look at Perez v. State, 138 So. 3d 1098 (1st DCA 2014). Perez was found guilty of resisting an officer without violence (among other things). Law enforcement believed that evidence of a burglary may have been located at a certain house, so the officers decided to conduct a "knock and talk" on the home, a procedure in which the cops simply knock on a front door, and hope that the occupants will speak to them. In this case, when the police rolled up, Perez and another individual headed out the back door. The cops ran toward him, and Perez decided to stop in the yard (the other guy jumped the fence and got a little further away). Perez was found guilty of not obeying law enforcement's command to stop running. Was this really a crime? Well, let's take a look.

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Can I Get a .... Continuance?

gavel3.jpgTiming is everything. This is especially true of criminal cases. Unfortunately, not everyone has the financial means to hire an attorney right away. So, what happens when a defendant delays hiring private counsel--must the judge permit him to have the lawyer of his choice?

A bit of wisdom here. Hiring a lawyer late in the game is bad for everyone. The defense attorney has less time to prepare, and an investigation conducted months after the incident will not be as effective. As a general rule, accused citizens have the right to pick our own attorney (if they can afford one), but we do not have the right to an attorney of our choosing at any time we like. This decision is left up to the judge.

[Warning, skip this paragraph if you're sick of defense attorney war stories, really, I understand] Over ten years ago, I was hired to represent a client on the morning of trial. This was the first (and last) time I will ever do such a thing. It was a felony drug case, never continued by the public defender, and I had already spoken to the prosecutor who had no objection to a continuance. Vegas odds would have me getting this first time continuance, right? The only reason I tried to get into this case is that I uncovered serious legal issues that could have (should have) been resolved by a Motion to Suppress, but the public defender never filed any motions. Even with all this going for us, the judge refused to let me in the case. I refunded the fee (ouch), and nobody was happy. I wanted to help this guy. The public defender wanted one less case. My client wanted me defending his case. Nobody got what they wanted. Yes, the constitutional right to an attorney of your choosing was clearly ignored by this judge. (I think my client would have won an appeal of this judge's decision, but he didn't want to appeal)

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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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