home-florida-300x225Let’s say you’re inside your home.

Let’s say the police are pounding on your front door.

Let’s say the police are demanding entry because they have probable cause to arrest you.

Let’s say you tell the police to piss off, and that you’re not letting them in.

Let’s say the police kick down your door.

Is this legal?

Notice what I didn’t say.  I didn’t say they have a warrant.  All they have is probable cause to arrest you for something.

What we have here is the facts in the recent case of Nieves v. State.  2019 Fla.App.LEXIS 12095 (Fla. 2d DCA 2019).  Nieves’ girlfriend called the police, claiming he beat her.  The girlfriend waits outside of the hotel room for the police to arrive, the police interview her and decide they have probable cause to arrest Nieves for domestic violence battery.  So, the police knock on the hotel room door in an attempt to arrest Nieves.  Nieves talks to the police and refuses to answer the door.  The police decide to get the resort’s management involved.  The police now have a key to enter the room and arrest Nieves.

However, Nieves braced the bed against the door and as the appellate court noted, “Mr. Nieves’ ingenuity with the bed left [the police] unable to enter.  One officer started to kick through the door.  Some others removed the screen from the open window, grabbed Mr. Nieves, and pulled him through the window and out of the room.  He struggled as the police attempted to put him in handcuffs.”  id. at 3 Continue Reading

theft-300x225Think back to middle school or high school for a moment.

Remember that sinking feeling when you’d get called to the principal’s office?  Even the vice-principals office would give you that same feeling, right?

Ok, so this only happened to me.

If school administration never needed to pull you out of class, good for you, but I’m sure you’ve had other “uncomfortable talks.” How about those times when your significant other mentions five vague words like: “Honey, we need to talk.”  Hum, what could that be about?  I’ve done nothing wrong.

A serious talk with a doctor can change your whole outlook on life.  As I sit here typing this on a Monday afternoon, my week doesn’t seem that valuable.  Yes, I take things for granted I suppose.  But, my tune would change if a doctor told me that I only have another week to live.  How much would I pay just to have another day?  Just to have another week?  Every day would be priceless at that point.  (some folks visualize the worst possible thing every morning, wife and kids dying, what-have-you, in order to set up gratitude to last the rest of the day.  I can’t stomach that.)

Talking with the police can land you in a similar spot.  Say the wrong thing, and you may be spending the rest of your life behind bars.  Fortunately for some, DNA testing has set free hundreds of people who have spent decades in prison–and these folks had confessed to their crime.

Yes, detectives are professional interrogators.  Just like a magician can make things disappear, detectives can make people say things that aren’t true.  False confessions occur for any number of reasons, and the phenomenon is scary.   But there is something you can do. Continue Reading

weed-300x199We have science to thank for much of our progress in the last thousand years.  Any guess as to what is the most important technology ever invented?  The wheel?  The printing press?

Hands down, whoever invented fire technology may have advanced human civilization more than any other tech, and we’ll probably never know which caveman or cavewoman came up with that brilliant idea.  You need not watch Naked and Afraid to know that fire is everything.

But, technology has created its share of problems.  Are we watching too much TV?  Are kids interacting too much with tech, rather than actual human beings?   Do people have fewer human friends now, versus decades ago, all due to technological “advances”?

What we do know is that technology is now creating a problem for prosecutors.  Here’s the evolution of this problem.

The first problem is, July 1st, 2019 marked the day that hemp became legal in Florida.

The second problem is, hemp is the same plant as marijuana.  They are both cannabis plants, but hemp contains less THC (tetrahydrocannabinol, the stuff that gets you high).  As such, the police cannot determine whether a citizen is possessing legal hemp or illegal marijuana.  After all, hemp smells the same and burns the same and looks the same as illegal marijuana.

Yes, we may be seeing far fewer possession of cannabis arrests.

Let’s get back to science for a moment, so we can understand the problem with all of this.  Scientists can send people to the moon, but they have a tough time telling the difference between hemp and marijuana.  Notice I said “scientists.”  Not police.  Not prosecutors.  Not judges.

Prosecutors rely on the laboratories at the Florida Department of Law Enforcement (FDLE) to convict folks of drug crimes by having a “scientist” testify from FDLE (yes, I’m using air quotes).  The measurement devices currently used by FDLE to test for the presence of THC are gas chromatographs (GC) and mass spectrometers (MS). The problem is, these laboratories do not have the instruments necessary to tell the difference between a legal substance–hemp, and an illegal substance–marijuana.

Continue Reading

baggies-cu-e1563998786979-225x300I went to public schools through the eighth grade, but for high school, my parents sent me kicking and screaming to an all-boys Jesuit (Catholic) High School.  I grew to love the place, but leaving my old friends was tough (I’m pretty sure that’s what my parents had in mind.  It worked, by the way).

So, one cool thing about going to a school run by priests and nuns is that you get to know a few priests and nuns.  They’re interesting people.

This one particular nun really enjoy teaching testosterone-filled young men (redundant, as I suppose all high schools are chuck full ‘o hormones).   Prior to arriving at my school, she had been locked away in a monastery for the last decade.  No communication with the outside world.  No newspaper.  No phone.  No television.  no radio.  No nothing, other than the other nuns, of course.

The sequestered way of life seemed insane to me because in my youth, I was so wrapped up in the news cycle and current events  that I couldn’t imagine spending a decade without the news.  News is “important,” right?

I asked her once, “what if something important happened, how would you know?”

She said that “if anything important happened, someone in the town would walk up the hill, knock on the door, and explain what was going on.  And, that never happened.”

Basically, this nun survived a decade without one bit of news.  Not one TV show.  Nothing. How could she NOT know “what’s going on?”

Well, I now understand where this nun was coming from because I also no longer watch the news (as best I’m able).  It’s taken me over 30 years to get there, but I’ve arrived.  No, I’m not being some smug elitist that “only reads books”, I’m just saying that for me personally, the news cycle is not uplifting.  I’m happier without it.

Now for the hypocrisy, of sorts.  It brings me great joy to bring you some happy news. Continue Reading

Science can explain everything.cropped-message-300x188

As I sit here typing, neurologists can explain how the light from the screen is processed by my retina, which is directly connected to my brain.  Some scanner out there (fMRI?) could probably map out my visual cortex as I’m looking at this screen.    Another branch of science could probably explain how my brain is sending signals to my fingers so that I can hunt & peck this article.  Scientists have no problem mapping out the function of things and figuring out their structure.  Easy stuff.

The tough question is, why should these structures give rise to any sort of feelings?  Sure, science can explain everything–except how I feel.   I’m sure some coffee scientist out there can drill down into how the delicious smell of coffee first hits my nose, which then sends a signal to my brain, which then causes me to rush to the Keurig machine and retrieve that precious liquid that gets me through the rest of day.  But, no scientist can tell me how that coffee is going to taste.

No, we’re not going to dive into “the hard problem of consciousness” today (or ever?), as I’m running out of words (web promoter people tell me to keep it under 1,000 words.  Sorry), and you’re running out of interest.  Suffice to say that, even though there are plenty of limitations on science, certain criminal cases are begging for a bit of attention from the white coats.  You need science to prove certain allegations.  You need science to defend certain allegations.  We’re going to talk about just such a case today.

Demetrius Nugent was convicted of trafficking in oxycodone based upon lots of pills found in a car he was driving.  Nugent v. State2019 Fla. App. LEXIS 89333 (Fla. 2d DCA 2019).

Here’s what happened: the Lee County Sheriff’s office was conducting a drug investigation, and they had their eye on a red Mustang that kept making odd trips in and out of a neighborhood.  They followed the Mustang to a convenience store, where they then observed a Nissan pull up next to it.  Then, someone hopped out of the Nissan and into the Mustang.  The Nissan person exited the Mustang with something in his hand, but the cops didn’t know what it was.  The Nissan leaves the convenience store and naturally, the police follow.

Now, remember what I said upfront: the police are conducting a drug investigation.

And, how do you find drugs?

Well, you’ve got to come up with a reason to stop that Nissan. Continue Reading

home-florida-300x225Have you ever met that perfect couple?  You know, the couple that causes bad thoughts to pop in your brain, like, “can anyone really be that happy?”  They must be hiding something, right?   If you’ve ever tried meditating, then you know how many random thoughts are popping in and out of existence at any given moment.  It’s tough to control sometimes.

And, I also can’t control that wave of joy that washes over me when I discover that the perfect couple is not, in fact, so perfect.  Again, these feelings just happen.  In German, the word for taking joy from someone else’s failure is “Schadenfreude.”

When the perfect couple breaks up, everybody wants to know the reason.  The simpler, the better.  We want a one-word explanation, if possible.  She “cheated”.  He “abused” me.  She’s a “narcissist.”

The problem is, reducing a complex situation to one word isn’t accurate, or helpful.

There’s nothing more annoying than watching some talk show host demand, “Give me one reason why I should vote for your candidate.”  Really, one reason?    When a judge asks “Give me one reason why I should not send your client to prison,” I’m ready with an answer that will keep my client out of prison–a better answer than what the judge expects from such an unreasonable question.

One of the many things I’ve begun to question after 26 years of defending criminal cases are the tiny convenient “facts” the police pepper throughout their arrest reports.  Yes, I’m using air quotes around “facts”.  The case we’re going to discuss today is a prime example. Continue Reading

fun-e1558908913901-300x249If you’ve ever seen an interview with a doctor or scientist, they always prance out their white coats because it makes what they’re saying more believable.  Now, if you add blinking lights in the background, you’ve taken it to the next level.  Experts love technology.

One of the cool things about advanced technology is that, if sufficiently advanced, it is indistinguishable from magic.

For example, who would have thought that a machine could ever read our mind?  Neurologists now claim they can “read your mind” by utilizing various technologies, even off the shelf EEG monitors to read electrical patterns given off by the brain (redundant, slightly).  When these machines get up to speed, they will help stroke victims who have lost their voice to speak once again.

As smart as neurologists think they are, Silicon Valley may have beaten them to the punch.  Google can “read our minds” better than the neurologists and their gizmos.  Google knows what I’m going to type before I type it.  Heck, Amazon knows what I’m going to order before I order it and I’ve heard that they’ll shift inventory of certain items to a closer warehouse in anticipation of my order.  Even scarier yet, some retail stores have hit young ladies with coupons for maternity clothes before they (and their very upset parents) realize they’re pregnant because their purchases fit a purchase pattern of other pregnant folks.

Cops can also predict behavior.  Much like the timing of a maternity coupon before the woman knows she’s pregnant, cops can sense when things are about to go down.  And, that’s how we arrived at our case for today.

At around 3:00 a.m. a Polk County officer was parked at a church when he noticed noise coming from a nearby (closed) Walgreens.    The officer sneaks up on the back door of the Walgreens and calls for backup as he sees two men using a yellow crowbar to pry open the back emergency door of the Walgreens.  These guys must have sensed trouble so they ran away and were quickly picked up by a black Mustang.  The officer calls in a description of the car, and a few moments later the black Mustang was pulled over down the street.  Sanchez v. State 2019 Fla. App. LEXIS 6756 (Fla 2d DCA 2019) Continue Reading

def-300x225

You’re about to hear some strange goings-on, and because so much strange stuff tends to come out of Florida, let’s start with a true story from out West.

Earlier this year, a nursing home in Phoenix discovered that a patient of theirs was pregnant.  Eventually, this nursing home patient gave birth.  Now, a woman giving birth isn’t odd by itself.  Even a woman giving birth in a nursing home isn’t the craziest thing ever, but this particular woman has been a vegetative state for 14 years.   Even after giving birth, this woman is still in a vegetative state.

The police department didn’t need to call in the FBI to help solve this one.  The local cops just obtained DNA samples from all the male nurses working at the assisted living facility and moments later–crime solved.  To no one’s surprise, the father of the child was a licensed nurse in charge of taking care of the woman.  [See Also the film “Kill Bill Vol. 1”, the intro scene entitled “My Name is Buck”, its art imitating reality, and as Greg Graffin once sang, Sometimes Truth is Stranger than Fiction (my web optimizer people discourage obscure punk rock references, sorry web people)].

A similar strange thing happened in an Osceola hospital recently.

A seventeen-year-old girl gave birth to a child.  Sure, she’s a bit young to be giving birth.  In this case, the oddity was the fact that her baby had a brain defect, a chromosomal abnormality.  This abnormality tells the doctors that, basically, the crime of incest is afoot.  Continue Reading

Some of you are too young to remember late fees.IMG_2927-300x225

Late fees involved renting a $3 movie and paying another $6.42 in late fees.  Late fees created that pit in your stomach when you glanced over at your coffee table, noticed a blue & yellow Blockbuster video box, and wondered to yourself “Wasn’t that supposed to be returned last week?”

Blockbuster made $800,000,000 per year on late fees. I’m pretty sure I contributed about $100/year to that pile of money, and it made me angry every time.  It’s not too far of a stretch to assume that most Blockbuster customers hated their late fees.  But solving problems will make you money, and one man’s problem is another’s opportunity.   So, a tiny company saw my late fees as an opportunity and did the seemingly impossible: video rental with no late fees.

Wow.  What a concept.  And that’s where the Netflix revolution began.

When I heard about this video rental company without late fees, my next question was: where do I sign up?  I gladly paid Netflix a monthly fee to mail me DVD’s long before Netflix was crowned the world’s largest movie production company.

Here’s the crazy thing: Blockbuster saw all of this unfolding.   They could have stopped it.  Yes, you know how this story ends, but as the story goes, someone in Blockbuster management with a “C” title (could have been a CEO, CFO, COO, who knows) proposed to their board that they do away with their late fees, as Netflix had done.

The board erupted in laughter.  “We ain’t giving up $800,000,000 in late fees, are you effing crazy?  We should fire you just for suggesting such…” (this is my fictional account of what happened in the board room, I’m sure they used actual curse words in the real meeting).

Blockbuster could have bought Netflix for pennies on the dollar  (just as Yahoo could have bought Google for pennies on the dollar, and the list goes on and on).   Yes, hindsight is 20/20, and as Yogi  said, “it’s tough to make predictions, especially about the future.” Continue Reading

math-300x195For a moment now, I want you to conjure up your best Carl Sagan sense of wonder.  Remember his awe at the ‘unreasonable effectiveness of mathematics in science’?

Physics uses math in an attempt to model the world, and models predict things.   For example, the right mathematical models can reveal how billiard balls or motors or planets will behave.  It seems complicated because these equations can fill entire blackboards.  But it is easy.

Now, with even greater awe, imagine how useless mathematics is in biology.   Yes, you heard me.  Math is useless.  As Noson Yanofsky notes in his book The Outer Limits of Reason, math isn’t good at predicting “how a crowd [will] react to a certain event, or how a human [will] react to a relationship” because that “is far too complicated for our mathematics.  Mathematics does not predict all phenomena.  It only helps with predictable phenomena.  Or, as it is slightly humorously phrased, ‘God gave the easy problems to the physicists‘.”

I have a rule in my office: No Math.

I don’t do math.

So, it should come as no surprise that when someone wants me to compute their chances of success at trial or at a hearing or what-have-you, I won’t do it because attaching numbers to such unpredictable events is useless.  Basically, the outcome of a criminal case can often be “far too complicated for our mathematics”.

Sure, you must ask an attorney “How many times have you defended this type of case, and what kind of results are you seeing?”  I get that.  But, any answer from an attorney that says something to the effect of: “Your chances of winning this Motion to Suppress is 79.3%”.  They’re lying.  Or at the very least, their quantification of past results into a predictive model of future success needs to be scrapped.  Quantifying the situation gives a potential client a false sense of security.

I started my defense attorney career as an assistant public defender.  My first day in court, ever, was my first day of work.  It was a trial day.  I won my first trial.  But, I really knew very little about defending criminal cases.  My stats remained great, but my actual knowledge was minimal.  As I’ve gotten better at this (and 26 years in, I’m still learning…), I’ve also taken more losses.  My stats are worse as I get better at this.

No defense attorney has a crystal ball.  No one cannot predict every outcome of every criminal case.  If an attorney guarantees you an outcome–get it in writing.  Even physicists, with all their fancy equations, can only predict so much before resorting to uncertainty principles.  We can’t even trust the weatherman to tell us the weather next Thursday, can we?

That being said, we attorneys use our experience to make very accurate predictions about how a case will go, from start to finish.  Even without math, humans are fairly predictable, judges are fairly predictable, and we can prepare our clients accordingly.   No matter what you’re charged with, we attorneys must be able to tell you what range of punishments are available to the judge.  We must be able to answer the simple question “What Am I Facing?”    Continue Reading