This Crime Is Impossible To Prove

pouch-300x225Big charges make the news.  Defense attorneys love big cases because their egos enjoy coverage on the evening news.  Heck, lawyer egos even enjoy the bought-and- paid-for attention manufactured from incessant TV ads and billboards.  And, if you know nothing about attorneys, please know that they have quite the egos.

The ego stroking options are endless for attorneys, big cases aren’t the only way to go.  When I first started defending criminal accusations back in 1993, all the new lawyers at the public defender’s office bragged endlessly about their jury trials, even to the point of chest pounding the likes of which you haven’t seen since the intro to 2001: A Space Odyssey (One of the best movie intros ever? Certainly makes the Top Ten List).  At my old PD office, when an attorney was about to begin a trial, a loud ego blast (email) would go out office wide, saying something like “picking 6, someone please cover my office conferences”.  No, this attorney never had anything to cover, but at least the whole office knew what a “fighter” he/she was.

A particularly annoying fad of late is the rash of attorneys who write “books”.   I don’t consider these books to be real “books”,  that’s why I’m using air-quotes.  Unfortunately, books are now like a business card, a marketing tool, rather than something that can add value to folks lives.  Call me old fashioned, but I say write a good book or don’t bother.

And, this brings us to an important question someone smarter than I formulated: Am I saying this because I want to sound smarter than everyone or am I saying this because it needs to be said? 

One group of folks who say what needs to be said (even though doesn’t make them seem smarter) are stand up comics.  Stand up comics deliver genius level insights without the burden of their ego begging them to say something more “intelligent”.

So, here’s something that needs to be said about a tiny little crime known as Attaching a Tag Not Assigned.  It is a second degree misdemeanor, punishable by a couple of months in jail, or six months of probation, or any combination of the two.

This charge has been bugging me for years, because it can’t be proven.  A real life example case will shed some light on my point here.

In Weaver v. State, Ms. Weaver’s car was pulled over because her license plate did not match the vehicle.  2017 Fla. App. LEXIS 19338 (Fla. 2d DCA 2017)  She explained to the cop that “her friend attached the tag to the vehicle so that she was able to drive it.”  No, that’s not the smartest response ever, but honest I suppose.  Because of the tag issue, the cops eventually searched the car and found felony drugs.

The crime of unlawfully attaching a license plate not assigned can be found in Section 320.261, and it reads as follows:

Any person who knowingly attaches to [any vehicle] any registration license plate [or sticker] . . . which plate or sticker was not issued and assigned or lawfully transferred to such vehicle, is guilty of a misdemeanor of the second degree.

Weaver’s defense attorney moved to suppress all of the evidence (thereby dismissing the felony drug charges) because the officer had no business arresting her on the Attaching Tag Not Assigned charge.   The trial court denied the motion, and we’re here today talking about the case because she appealed that decision.

First, you need to know something about misdemeanors.  If an officer is going to arrest you on a misdemeanor, he has to see you do it. See Baymon v. State, 933 So. 2d 1269 (Fla. 2d DCA 2006) (the exception to this is battery domestic violence, FYI).  This is the law in Florida, codified in Section 901.15(1) of the Florida Statutes.  Anyway, now that we got the technical stuff out of the way, what’s the problem with what happened to Ms. Weaver?

Well, did the officer see Ms. Weaver “attach” the tag to her car?  No, he didn’t.

The appeals court in this case cites Phillips v. Statewhich held that “a warrantless arrest for an improper tag violation was invalid where the defendant had not committed the offense in the presence of the officer, noting that “there is nothing in the record to indicate that the police officer personally observed appellant attaching a registration license plate or a validation sticker which was not lawfully transferred to the subject vehicle.  In the absence of such personal observation by the police officer herein, probable cause to make the warrantless arrest did not exist.” id. 

Citing Phillips, the court deciding Ms. Weaver’s appeal held that “because the officer did not observe the act constituting the misdemeanor offense in this case, we conclude that the warrantless arrest was invalid, and the evidence obtained pursuant to the search incident to arrest should have been suppressed.”

Bottom line is, every single attaching tag not assigned case I’ve ever seen happens just like it happened to Ms. Weaver.  Since 1993, I’ve never seen the State prove this charge.  Every case, the police run the tag, pull the car over, and make an arrest.  At no time do they see a “crime”.   It simply can’t be proven. End of story.