Articles Posted in Constitution

police iraq.jpgIt’s never fun being confronted by government officials wearing guns and shiny badges. This is especially true in places like Iran, or North Korea. But, it’s scary here too. Lucky for us, we have “rights”. We can halt the questions, and get an attorney to come and help us, before we say something stupid. The police must warn us that we’re about to say something stupid, and the Miranda Warnings go something like this:

You have the right to remain silent. Anything you say can and will be used against you in a court of law. You have the right to an attorney. If you cannot afford an attorney, one will be provided for you. Do you understand the rights I have just read to you? With these rights in mind, do you wish to speak to me?”

Today, we’re going to focus on “You have the right to an attorney.” Actually, you don’t always have the right to an attorney. If you’re not in police custody, or the police are not conducting an interrogation, there’s no need to be warned of your rights. This is true even when being arrested, the police do not have to read Miranda warnings unless, of course, they plan on questioning the arrested person. So, here’s the deal. Plain and simple. If a citizen asks for an attorney during police questioning–the officer must stop the interrogation until an attorney is present. Sure, rights are nice to have, and they look good on paper, but what happens when the police ignore this right?

When the police do something they shouldn’t do, we criminal defense attorneys file various motions, such as a Motion to Dismiss, a Motion to Suppress, or a Motion in Limine. These motions ask the judge to remedy the wrong created by the police misconduct. Some police misconduct rises to the level of dismissal (entrapment, for example), but other police misconduct warrants that the court exclude whatever evidence was obtained as a result of the misconduct. A Motion to Suppress asks for just such a remedy, moving the court to exclude whatever was said or discovered as a result of the wrongdoing. Our real life case of the day involves wrongdoing on the part of law enforcement, and on the part of the criminal defense attorney arguing a motion to suppress.

In Laurito v. State, the defendant was convicted of aggravated battery with a firearm, two counts of aggravated assault with a firearm, and shooting into an occupied vehicle. 120 So. 3d 203 (Fla. 5th DCA 2013) The case was fairly simple. Shots were fired from a car containing three individuals. The police couldn’t figure out who fired the shots, until a detective got Laurito to confess. Of course, it took some fancy 90’s cop show dialogue to get the confession, as the detective called Laurito “a little girl”, a “stupid bitch”, and “said he would be ‘proud’ of him if he admitted shooting the ‘motherf*****'”. Id at 205. I’m pretty sure this dialogue was stolen from the Beastie Boys video for Sabotage (my favorite music video, ever), but I can’t be sure until I watch the video for the thousandth time. Anyway, it wasn’t the cheesy lines that got the detective in trouble. No, what offended our Constitution was the fact that before confessing, Laurito asked the detective, “Can I make a phone call so I can get a lawyer?”
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Usually, I’m excited to tell you all about what’s happening in Florida’s criminal justice system. And, that’s sort of true today, but we’re not going to examine a criminal case. Today, its a civil case. As a general rule, civil cases are pretty boring–so boring that some of you won’t even make It to the next sentence. Believe it or not, the case of Barnett v. Antonacci is interesting. 122 So. 3d 400 (Fla. 4th DCA 2013).

In 2012, a prosecutor in the Nineteenth Judicial Circuit, charged defendant Chris Blane with three counts of fraudulent transactions and one count of second degree grand theft. Barnett was the victim of these crimes. This first prosecutor had a conflict, so the case was sent to the Fifteenth Judicial Circuit, State Attorney Antonacci–now the defendant in this lawsuit (odd, isn’t it?). Blane’s criminal defense attorney filed several Motions to Dismiss based upon violations of the Statute of Limitations, but these motions were never heard, as the “new” prosecutor eventually filed a nolle pros (fancy term for “dropped charges”) on all four counts. The record doesn’t indicate why the charges were dropped, but when the victim found out, he sued the prosecutor. Technically, the victim sued to have the nolle pros set aside, and to have another prosecutor appointed to pursue the charges.

The victim was never told that the charges were going to be dropped, nor told that such a move was even being considered. Bad communication, for sure–but I’m not so sure a lawsuit is the proper response. Nonetheless, victim Barnett argued that the Florida Constitution compels the prosecutors to inform him of their actions. And, because he was not informed, his rights were violated, and the court should appoint another prosecutor. Hum, that’s asking for a lot, don’t you think? Article I, section 16(b) of Florida’s Constitution states:

Victims of crime or their lawful representatives, including the next of kin of homicide victims, are entitled to the right to be informed, to be present, and to be heard when relevant, at all crucial stages of criminal proceedings, to the extent that these rights do not interfere with the constitutional rights of the accused.
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crumpled paper.jpgI’m seeing a scary trend. An unholy alliance between the legislature and judicial branch dedicated to concocting new laws that make convicting citizens easier. Tiny example: when I started defending criminal cases in 1993, I was permitted two closing arguments; the first closing, then a rebuttal after the state. Not anymore. The accused only get to make one closing argument.

Many technical rules of the court are tipping in favor of the state. Add to this the fact that the legislation itself has gotten out of control, we have more criminal laws on the books than ever before. And, lets not forget that our incarceration rates are through the roof. Oh, and can judges make sentencing decisions? Sort of, as long as they don’t disagree with the mandatory minimum sentences. Yes, the constitution places limits on some of these changes, and one such limitation is found in the Sixth Amendment.

The Six Amendment states that “in all criminal prosecutions, the accused shall enjoy the right . . . to be confronted with the witnesses against him.” U.S. Const. amend. VI. This constitutional right is known as the Confrontation Clause, and it forces prosecutors to use live testimony in trial so that the accused may properly cross examine the witness against him, rather than permit prosecutors to admit pieces of paper which cannot be questioned. Recent Confrontation Clause case law from our U.S. Supreme Court has overturned state practices which permit papers to be introduced as evidence against citizens when the admission of such papers will not permit the accused to cross examine such. Massachusetts had a law which permitted the prosecution in drug cases to simply admit a lab report to identify what the drug was–that law was struck down because there is no way for the defendant to challenge the report, the testing procedure, the qualifications of the test operator, etc. (for more info, see my article here, on Melendez-Diaz v. Massachusetts).

Prosecutors like using documents instead of live testimony because defense attorneys cannot effectively cross examine a piece of paper. Defense attorney cross-examinations provide juries a greater level of understanding–and we all know knowledge seems to be something our government seeks to keep out of the juries hands. Don’t get me wrong, I try to keep stuff out too, but I’m not an elected official sworn to seek justice…you know what I’m trying to do. Police work is only easy in a police state, and new laws and new court opinions that make police work easier simply erode what little freedom we have left. I’m not all doom and gloom here, as one recent Fourth District Court of Appeals case shut down a prosecutor and trial judge who permitted written testimony to be given to a jury in violation of the Sixth Amendment.
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By now, you should know that these articles are not written for those of you who want to feel intellectually superior to your fellow man — there are plenty of other outlets for such nonsense. The world is full of well-educated folks chilling at swanky gastropubs, comparing notes on recent New Yorker articles, and congratulating each other on their graduate degrees from some overrated university. My articles don’t have the self-congratulatory ivy league jargon necessary to make certain folks feel better about themselves. As such, I always spare you as much legal jargon as possible, so that the focus remains on what is happening at the ground level of Florida’s criminal justice system. On to the topic of the day…..

Driving while license suspended license charges (DWLS). Not a big deal to people who have a view of life from the back of a limousine, but a valid license is extremely important to the rest of us (why the rant on elitists today? I don’t know, but I’ll stop now).

Unfortunately, DWLS charges seem to be more popular than ever. Our government has made it more difficult to obtain a license these days, yet its still easy to enter the country. When George W. was governor of Texas, numerous Mexican clients would get a Texas driver’s license (no proof of citizenship required by W, at the time), and have that license transferred to Florida. That worked, for a while. But, it is now more difficult for immigrants to obtain a license. Recently, I had a Russian client who married an American citizen, and it took her several years to jump through the proper hoops to obtain a valid license (eventually she got it, but had to go to the Russian Consulate in Virginia to get the process going…long story).

To understand the Florida Supreme Court case we’re going to discuss today, it is first necessary to understand the different varieties of driving while license suspended charges. The DWLS charge will vary depending upon either the driving history, or injuries, caused by the illegal driving. For driving history cases, if the driver has no knowledge that his license was suspended, the officer should issue a simple traffic citation for driving while license suspended without knowledge. This isn’t a crime, it’s a ticket. (naturally, an attorney should be hired on such cases, for reasons we don’t have time to discuss here)

The next level up involves a driver who, in fact, knows that his license is suspended. Under such circumstances, driving is a criminal act, a misdemeanor of the second degree (DWLS with knowledge). And, if the driver decides to drive again, after being caught and convicted of a previous offense, the charge is upgraded to a first degree misdemeanor (DWLS with One Prior). Now, if you rack up three DWLS charges within a five year period, the DMV will suspend your license for five (5) years as a Habitual Traffic Offender (should you find yourself in that unfortunate position, click here for information on how an HTO suspension may be overturned). If, after obtaining HTO status, you continue to drive, it becomes a third degree felony DWLS as an HTO.
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purse.jpgAfter practicing criminal defense for over 20 years, I’m prone to telling a few war stories here and there. With that warning in hand, here’s what happened.

My client kept getting into trouble with lewd acts. His preferred act was to masturbate in public bathrooms, out in the open. As you/he might expect, a young boy walked in while this was going on, and my client ended up with a felony conviction. Actually, this was his second lewd act conviction for the same behavior. Ouch.

This very same client–with two priors–decided it would be a good idea to (again) masturbate in public, across the street from a high school here in Orlando. Now, I suppose masturbating at midnight, in the dark, wouldn’t be the end of the world, but he was pleasuring himself, to completion, in front of several cheerleaders after a hard afternoon of practice (for legal purposes, I had to disclose the extent of the lewdness involved by informing you the act was ‘completed’, but as a favor, I just deleted several crude jokes that fit nicely here). Several cheerleaders witnessed my client’s lewd act, and my investigation discovered that some of them were underage–yet the cops only interviewed a couple of the 18 years old cheerleaders! As such, the cop arrested him on four misdemeanor charges (no felonies, yet).

It doesn’t take a rocket scientist to figure out that this case had the potential to be upgraded into a nasty prison felony, given the age of a few of the cheerleaders. So, my strategy was to plea to the misdemeanors at arraignment. The prosecutor objected to our plea (to the bench), claiming that the case was going to be upgraded to felony court as soon as the sex crimes division had the opportunity to review it. However, the freshly minted prosecutor didn’t drop the charges to prevent our plea, and I’m glad he didn’t because the plea on the misdemeanors caused the future felony to be dismissed. Now, with that lead in, let’s delve into our case of the day, Lafferty v. State, 114 So. 3d 1115 (Fla. 2d DCA 2013).
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surveillance cam.jpgSome would say that technology has made our lives better, and that’s a debate for another day–but one thing we can all agree on is the fact that technology has made it a lot easier for the government to track us. Creepy, invasive technology is no longer the stuff of Mission Impossible and three letter government agencies like the NSA and CIA. To add insult to injury, technologies which invade our privacy have trickled down to local police departments. Which of these snooping technologies constitute a “search”? As you know, anything that constitutes a “search” will require a warrant under the Fourth Amendment. So, think back to your high school American Government class, fourth period (right after lunch, so you were probably very sleepy). The Fourth Amendment to the United States Constitution protects us from unreasonable searches. This begs two questions: (1) what is considered “reasonable” and (2) what is a “search?”

Technically speaking, “a search occurs whenever something not previously in plain view becomes exposed to an investigating officer”. Norris v. State, 993 S.W.2d 918, 925 (Ark. 1999). For example, when police were walking through someone’s house, they slightly moved some stereo equipment so that they could read the serial numbers. The United States Supreme Court found that this slight move constituted a “search”. Arizona v. Hicks, 480 U.S. 321, 324-325 (1987). The only way the police can get away with a search is if they have a search warrant signed by a judge. Otherwise, the police have no right to see “something not previously in plain view”.

Searches are easy to define when it comes to physical places and things. But, what about searches of computers, smartphones, or Wi-Fi networks? Local law enforcement these days are fishing around peer to peer networks in order to make child pornography arrests. May they do this without a search warrant? In order to determine how the Supreme Court will react to these technological developments, we’ll have to review a few old cases.
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Can a government drone use it’s “x-ray” vision to take a peek inside of your home, and then use that information to obtain a search warrant of your home? Can a spy satellite zoom in on your backyard, and use that information to have swarms of police invade your home at 4 a.m.? Or, can the police bring a drug sniffing dog up to your front door and use the dog’s “alert” for the presence of weed as a basis to have a judge issue a search warrant? This random porch sniff was really happening in the State of Florida. Believe it or not, drug sniffing dogs were brought up to numerous porches, and the dog alerts were used against the homeowner. Is that legal? Well, this scenario played out in real life, through many court rooms in Florida, all the way up to the United States Supreme Court.

The case is Jardines v. State, 73 So. 3d 34 (Fla. 2011). Miami police received an unverified tip that Jardines was running a marijuana grow house in his home (is there any other type of grow house, other than marijuana?). Based upon this tip, the police staked out the joint for a while, watching who was coming to and from the home. Typically, the government doesn’t bust a grow house instantly, they want to see who the players are–what they look like, what kind of cars they drive. They’ll even follow these folks to other locations to possibly find more grow houses.

binoculars-2-.jpgAt some point, an officer decided to call in a drug detection K-9 to sniff Jardines front door. Sure enough, this dog alerted to the base of the front door. Now, I have a sneaky suspicion this dog alerts at every location these officers are staking out for grow house purposes, but how we’ll ever know whether or not this dog alert is legit is a discussion for another day (they did find plants inside, so…). For purposes of this analysis, we’ll just agree that the drug dog did, in fact, alert to the base of the front door. And, this alert from the dog was used to obtain a search warrant for the home. And, no surprise here, a search of the home located marijuana plants. Jardines was charged with possession of marijuana, cultivation of marijuana, and the laundry list of other crimes that come with running a grow house.
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courthouse.jpgWe all need our rest, no doubt about it, but our sleepy-brain-wave-patterns (like that technical term? I made it up myself) seem to be disrupted by cell phone signals, WiFi signals, radio waves, gps signals, dogs and cats living together–it’s just too much stuff. With all that, I’m going to further claim (fabricate) a statistic for you–insomnia is at an all time high worldwide. We just can’t sleep.

Now, what really keeps me up at night is not RF interference, Conan, Jimmy Kimmel, or some West Coast football game that starts at 9:00pm. No, what keeps me up late at night is knowing all the ways our bored legislature is going to claim to be “working” the next day by making more things a crime.

So, what is a criminal defense attorney to do? File motions, of course! Today, we’re going to examine why I think the crime of refusing to blow into a breath machine for the second time is unconstitutional. Florida Statute 316.1939 creates a misdemeanor when a citizen refuses to take a “lawful test of his or her breath, urine, or blood” having refused such previously.
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search lights.jpgIt seems like the government can search just about anything these days, as long as they can find a judge to sign a search warrant. But, the police may also search a citizen’s belongings without a warrant, under certain conditions. Today, we’re going briefly discuss one exception to the Fourth Amendment’s warrant requirement, searches incident to arrest.

It makes sense that the police should be able to search a person before he is placed into to county jail. After all, they don’t want folks bringing guns or drugs into the jail. But what is not so obvious is, how far can a search go once the person is arrested and we know they’re on their way to jail? May they search your entire car? May they search your cell phone? Let’s find out.

Historically, the most common search incident to an arrest was the search of a defendant’s car. Basically, if you were arrested for something as simple as driving on a suspended license, the police were permitted to search your entire vehicle after the arrest. Now you may ask yourself, why? Is it physically possible for a person who is handcuffed, sitting in the back of a patrol car, to access their potentially dangerous belongings within their car? Nope. It’s not.
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home florida.jpgHave you read our Constitution? In case you haven’t recently, there’s nothing within it that requires American citizens to open their door when somebody knocks. Opening your door to a stranger is optional. Why people feel compelled to answer the door is beyond me. And to add insult to injury, I’m not sure why folks running illegal grow house operations would be so eager to answer their door either. And since we’re discussing grow houses, a little explanation could be helpful here.

Grow Housesare simply residential homes in which every room is converted for marijuana cultivation. The operation lasts 4 months, and vacant home owners are offered $10-20,000+ dollars for the temporary use of their residence. The residence is left in shambles following the harvest–holes are cut in many walls for irrigation pipes, dirt everywhere. The operation requires extra air conditioners to cool down all the hot grow lights. The energy usage can throw up red flags to the electric company, as energy usage far exceeds normal usage–thus many operators ‘steal’ power by altering power feeds to the home so as to mask their high power consumption, etc.

Our discussion of grow houses centers on the case of State of Florida v. Roman, 103 So.3d 922 (Fla. 2nd DCA 2012). Roman is accused of running a grow house. She was charged with trafficking in cannabis, possession of a prescription drug (alprazolam), possession of drug paraphernalia, and larceny with relation to a utility–just to name a few. You might wonder to yourself, how did the police find all these drugs? A good old fashioned illegal search, and a supposedly legal search warrant. It all started as many grow house cases start, with a tip to law enforcement. Based on this tip, the police began running surveillance on the property. Once the police notice a person showing up to the home, they will (eventually) knock on the front door. No exception here. The police eventually notice Ms. Roman pull up to the home and enter it, so they approach the front door.
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