Articles Posted in Motion to Suppress & Dismiss

I realize that none of you are pigs.  That being said, let’s review a common scenario that will come as a shock toiphone-passcode-169x300 my wholesome readership.  Imagine an attractive woman is shopping in Isle Five–the feminine hygiene isle–and she finds herself surrounded by men looking at the same products.  Are these men purchasing awkward products for their lady at home, or checking her out?

Real life example number 2: A friend of mine worked for a major hardware store (their logo is orange, you figure it out).  Roughly 85% of the male employee’s walkie-talkie chatter involves notifying other employees of “yoga pants in Isle 12”, or “short shorts in Isle 22”.  I’m just saying.

“The beautiful people” are not the only targets of creepy gawking shoppers.  Sometimes, even the not-so-attractive folks attract a crowd.  To confirm this, visit a website called “The People of Walmart” (www.peopleofwalmart.com).  Be Warned: you cannot “un-see” some of these images.  Suffice it to say that folks shopping late night at Walmart fail to pull up their pants, or bend over while wearing club skirts too short to permit any sort of bending.  You’ve heard stories that start with “You won’t believe what I saw at Walmart last night”– those stories are real. Continue Reading

There are several common themes we defense attorneys hear from people unfamiliar with the criminal justice system.  First, everyone thinks that their case should be dismissed because “the cops didn’t read me my rights”.  I hate to be the bearer of bad news, but cops are not required to read everyone Miranda warnings.   The second favorite reason for dismissal is the statute of limitations.  If the suspect isn’t caught “in the act”, and arrested months later, most people assume their case must be thrown out under the statute of limitations.  And, that’s our topic for today.  For those of you not familiar with the concept,  Florida law imposes a statutory deadline on prosecutors, forcing them to begin their prosecutions within a certain amount of time.  [The statute of limitations is found in Florida Statute Section 775.15]clock

Here’s how the time frames work.  Prosecutors must begin “prosecuting” all second and third degree felony cases within three years (we’ll talk about what it means to start a lawsuit later).  Misdemeanors must begin in two years for first degree misdemeanors, and one year for second degree misdemeanors.  And the next logical question is, when does the statute of limitations clock start ticking?  The period begins when the offense is committed.  With these basics out of the way, let’s dig a little deeper.

The statute of limitations places the burden on the state to begin their lawsuit “without unreasonable delay”.  This is where we find 99.99423% of the problems. What does it mean to start a lawsuit “without unreasonable delay?”  First, the government must locate the person they seek to bring a case against, and arrest them.  Pretty basic, right?   Both criminal and civil cases can be dismissed if the party bringing the lawsuit makes no attempt to serve the person they’re suing.  The statute of limitations does not specify how the government should begin their lawsuit without delay, but often times, we defense attorneys can show that the government has made no attempt to locate the person they wish to prosecute.   So, what happens when the government arrests the suspect after the statute of limitations has expired?

We are a lawsuit happy society.  This is especially true of our government.  When the government sues you, more often than not, it is a criminal lawsuit.  State of Florida vs. YOU.  Initiating any sort of lawsuit carries with it the burden of informing the person you’re suing that they are, in fact, being sued.  In criminal cases, the burden is on the state to inform the defendant of the lawsuit “without unreasonable delay”.  If a lawsuit begins when the other party is served with notice or “papers”, a criminal lawsuit’s notice is typically an “arrest”.  How does a prosecutor begin a criminal case in which the suspect hasn’t been arrested yet?  They get a judge to sign an arrest warrant, and the prosecutor gives this arrest warrant to the sheriff, who will then locate the defendant and make the arrest.  If the sheriff’s office makes no effort to locate a defendant, such laziness may constitute an “unreasonable delay” (and the case will be dismissed as violating the statute of limitations).  But, there is a recent case which seems to suggest that the government need not make any efforts to initiate their lawsuit–so long as the defendant is shown to have been out of state.  Sure, We The People must follow the rules to locate the person we are suing–and if we fail to serve them, our lawsuit may be dismissed.  Not so with the government.  They play by their own set of rules.   Continue Reading

Oh the times, they are a changin’.cannabis plant

Every time I walk into the Orange County Courthouse, I see some guy asking me to sign a petition to “put medical marijuana on Florida’s Ballot”.  Somehow, whenever I’m dressed in my work uniform (suit, tie, and briefcase, don’t forget the briefcase), the petition signing hawks leave me alone.  It may be that too many “suits” turn out to be jerks, so they just don’t bother.  I understand that, and agree.  But, if I had the time, I would chat up the “medical marijuana sign holder” and tell him that medical marijuana is perfectly legal in the State of Florida.  It has been for almost a year now.

Most people don’t realize this.  Medical marijuana is legal in Florida.  I’ll keep saying it until everyone takes down the signs asking that we make it legal.  It’s legal.  Governor Rick Scott signed the law back in 2014, and it took effect on January 1, 2015.  The law is found in Florida Statute 381.986, entitled “Compassionate use of low-THC cannabis”.

Now, the question for today may sound like another episode of Inside Baseball, and for that, I’m slightly sorry.  It is the effect this law has on probable cause that should concern we citizens.  Law enforcement may not search your person, home, or vehicle without a warrant so long as they have “probable cause”.  Nine times out of ten, probable cause involves some officer telling his buddy “You smell weed?  Yea, I smell weed too, let’s search this place”.  Five times out of ten, this odor is detected after a citizen denies the officer permission to search.   Up until January 1, 2015, probable cause based upon the smell of weed made a bit of sense, as marijuana was illegal in any form up until that point.   Continue Reading

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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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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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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scales.jpgIt’s time for me to stroke you, dear reader. Congratulations for exposing yourself to important justice issues, issues that corporate news networks either do not have the time, or intelligence, to report. And, if you need further stroking, simply donate to any popular Hollywood cause–the accompanying “gala” will involve an orgy of “important” folks telling each other how important they are. Yes, the view from the back of a limo is rarely accurate, but often entertaining (especially upon exiting with a short skirt–don’t they see all those cameras out there?). Anyway.

There has been a long standing battle between those in favor of justice, and those who favor procedure. To understand this fight, we’ll use the real life case of Woodbury v. State. 730 So. 2d 354 (Fla. 5th DCA 1999) Woodbury was convicted of a felony drug offense. His criminal defense attorney filed a one page Motion to Suppress, arguing an illegal search of the vehicle in which Woodbury was a passenger. The problem with the defense attorney’s argument was that he left out one important argument; an argument that would have won Woodbury’s case. Ouch. Well, isn’t that why we have appeals courts? Shouldn’t an appeal restore justice? Isn’t that the job of appellate judges?

Here’s the problem. The appellate court may only review arguments made by the initial defense attorney. If the first attorney didn’t make the proper argument, the appeals court will not consider an additional argument–even though they know a costly mistake was made. That’s what happened to Woodbury. The appeals court acknowledged that Woodbury’s search was completely unconstitutional. As such, Woodbury was wrongfully convicted of a felony drug offense. The appellate court’s opinion points out what the defense attorney did wrong on his motion: “the core question here should have been whether a dog alert on a vehicle, in and of itself, authorizes the arrest and search of all the occupants of that vehicle. The answer is no. . . . Unfortunately, the motion to suppress failed to clearly state this reason as a basis for suppression . . . [n]or did counsel ever present argument to the trial court that the search of Woodbury’s person based only on the dog alert on the vehicle was improper.” Id. at 356 [emphasis added]
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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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bear.jpgIf I had a dollar for every time someone called to tell me their rights were violated, I wouldn’t have to work; I could just keep answering the phone and make a dollar here, dollar there. Part of my work as a criminal defense attorney is to challenge the constitutionality of a government search. Its one of my favorite things to do (boring, huh?). What we’re going to examine today are the very foundations of a challenge to a government search.

The Fourth Amendment is all about privacy rights. A government search will violate the Fourth Amendment prohibition against unreasonable searches only if a citizen can first prove that he has a reasonable expectation of privacy in the thing or place searched. When defending a criminal case, it is not enough to just stand at the podium and ask the court to suppress all the state’s evidence because my clients rights were violated. We “ask” the court to do things through motions. If we’re alleging an illegal search and seizure, the written form of this request is known as a Motion to Suppress.

The problem is, filing a Motion to Suppress is only the beginning. Practice Tip: there are different theories on how detailed a motion to suppress should be. Many defense attorneys file bare bones motions, so that the state is not tipped off as to what specific legal issue might be argued at the hearing. I disagree with that approach. You want to provide the court, and the state, with the bulk of your analysis in the motion so that everyone can prepare to argue the finer points. This is especially true if law enforcement has already articulated their position at depositions. Without depositions, I can see how a detailed motion might “influence” a witness to say things on the stand that will hurt the motion. Of course, this is why we have depositions, to lock the witnesses into their testimony.

Anyway, a Motion to Suppress hearing is conducted with live witnesses, and it is the defendant’s burden to start calling witnesses. No matter how unconstitutional a government search may appear to be on its face, it is still the defendant’s burden to first establish that there’s a privacy interest at stake. The very core of the Fourth Amendment is privacy rights. So, to win a Motion to Suppress, it must be established (typically by the Accused) that the defendant had a privacy interest in the item searched and seized. Alright, to see how this issue plays out, let’s examine Henderson v. State, 38 Fla. L. Weekly D 1786 (Fla. 2d DCA 2013).
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gun held.jpg Here’s a few basic principles of any criminal justice system. Juries are typically the fact finders. Judges are typically referees, calling balls and strikes throughout the process. But, what happens when the facts of a case are so weak that there is no need to have a jury trial? Well, we defense attorneys ask the judge to step into the fray, and make factual determination that will cause the case to be dismissed. Prosecutors don’t want judges dismissing weak cases, because they know that many defendants cannot afford the risk of going to trial, even on weak facts. Technically, when a criminal defense attorney poses this question to a judge, it is in the form of a Motion to Dismiss. This motion tells the court that the facts of the case do not constitute the crime charged, so why waste time tax payer money? We’re going to take a look one such waste of money, found in O.S. V. State, 120 So. 3d 130 (Fla. 3d DCA 2013).

O.S. was convicted of possession of a concealed weapon (brass knuckles) in his vehicle. Now, several issues may be examined in a concealed weapons case, issues regarding the stop of the vehicle, issues regarding constructive possession, or issues regarding the definition of a weapon. But the issue for today involves what constitutes “concealed”. And, who gets to make a determination as to what is concealed–the judge, or the jury?

When O.S. was pulled over for a bad tag light (yes, a classic bogus stop) the officer asked him to step out of the car. Once the door opened, the officer “could observe the brass knuckles sitting in the pocket by the driver’s door.” Id. An important question on any concealed weapons charge involves the degree to which the weapon was recognized by the officer. In this case, the defense attorney’s cross examination noted that the officer recognized the weapon “right away”. Id. O.S. also admitted to the officer that he had the brass knuckles in the car.
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