Articles Posted in Constitution

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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red light3.jpgUsually, this blog has but a few topics–criminal law, physics, or philosophy. But today, we’re delving into Florida’s Equal Protection Clause–as it relates to running a red light. To figure out what’s wrong with the red light camera laws, we have to dig deep into an insightful opinion from back in 2008, regarding toll violation citations.

First, let’s address a recent (2012) red light camera case. Imagine you run a red light and get caught. The problem becomes, how you get caught determines your punishment. Basically, you are punished more severely for being caught by a police officer than a red light camera. The fines for running a red light via camera are significantly less than the fines imposed when caught by a cop doing the same thing. Recently, a trial court held that the statutes dealing with running a red light violate both federal and state Equal Protection Clauses because the red light camera statute (Florida Statute 316.0083) punishes the exact same conduct as the citation written by a police officer (Florida Statute 316.075), yet “a driver who is observed by an officer committing the violation (in the traditional manner) is subjected to more severe penalties and ramifications than a driver who is fortunate enough to have committed the infraction at a “red light camera” intersection.” State v. Arrington, 95 So.3d 324 (Fla. 4th DCA 2012).

The State appealed the judge’s decision in Arrington, and the Fourth DCA agreed with the State, finding that the statutes do not, in fact, violate the Equal Protection Clause because the red light camera citation is only punishing the owner of the vehicle without assessing points against a driver’s license. By contrast, a citation written by a police officer is not against the “owner” of the car, it is against the “driver”. As such, the “driver” may be assessed points. Thus, the court found both statutes constitutional because they punish different things.

The appeals court cited the State’s argument that “points are personal–they apply to the licenses of people [who] violate traffic laws; they are not assessed against the vehicles involved in the violations. Due to section 316.0083’s focus on a vehicle’s “owner”, rather than the actual “driver”, it was rational for the legislature to exclude the imposition of additional points on the owner’s license.” Id.
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“Who are you going to believe: me, or your own eyes?” – Eddie Murphy
The police in Orlando have a tough job. Actually, the police in all of the United States have a tough job, and our founding fathers wanted it that way. As you know, police work is only easy in a police state. Thus, problems of proof are always an issue on offenses that don’t involve blood. If there’s blood at a crime scene, the CSI units are scrubbing the toilet bowl with laser tooth brushes looking for answers. No blood, and not one drop of physical evidence is collected.

So, how far can a police department get with the only proof is officer testimony–rather than ignored physical evidence? Now, not every case provides an opportunity to collect physical evidence, but today, we’re going to examine a case of possession of alcohol involving a minor. Usually, this charge is coupled with a disorderly conduct charge, as young folks cannot handle their liquor (old folks too, for that matter). On small crimes like this, the police never take the alcohol into evidence, nor do the police test the alcohol to make sure it is not a non-alcoholic beverage. The question becomes, what proof need law enforcement present to prove that a substance was, in fact, alcohol? Typically, the police simply pull the old Eddie Murphy routine, asking the court to “believe” what they “say”, rather than look to any sort of physical evidence of the crime. Must we take the word of law enforcement, when they fail to collect physical evidence to back up their observations?

The burden on the government to prove a possession of alcohol by a minor case is minimal, and several courts have held that the government need not present physical evidence of the possession, they need only present witness testimony that the appearance and smell of the illegal contraband is consistent with alcohol. See A.A. v. State, 461 So.2d 165, 166 (Fla. 3d DCA 1984). Other cases have held that a minor’s admission that the liquid is alcohol will suffice (this presents some corpus delecti issues, but that’s for another day).
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