Articles Posted in Motion to Suppress & Dismiss

referee-300x200I’m not a huge baseball fan, but I’ll watch when the St. Louis Cardinals are in the playoffs (and, they usually are).

Like many pro sports, baseball permits the players to argue with the umpire–up to a point.  But, when a certain line is crossed, the umpire throws a weird hand jester pointing to the exit–and the player is ejected from the game.  Even if you know nothing about baseball, you’ll recognize when a player is booted from the game.

What sort of language gets you kicked out of a game?

There are lines in baseball that you don’t cross.  A player can say “Hey ump, come on, that wasn’t a strike”.   Or even,”that wasn’t a [explitive] strike.”

But, the player cannot say, “Ump, you are an [explitive].”  If you complain that the pitch was an [explitive] ball when the umpire thought it was a strike, that’s ok.  But if you complain that the umpire is an [explitive], you’ve crossed the line and you’re getting thrown out of the game.  Even calling the umpire’s mother a bad name may get you ejected from the game.

Sometimes, a team manager may deliberately get himself ejected from the game, just to rally his players a bit.  The same cannot be said in my profession.  In criminal defense, saying the wrong thing may get your client convicted.   In our case for today,  a prosecutor said some things that got a conviction overturned.

Loucrucha Jeansimon was sentenced to 30 years in prison for drug trafficking.  As you may have figured out by now, this sentence was overturned because the prosecutor said some things that shouldn’t have been said. 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

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

Mark-Twain-Quote-e1525719777428-300x270

My DVR at home is packed full of science shows, physics and cosmology in particular.

Science shows have a  predictable format: “Interview a few geniuses who have it all figured out.  Theory XYZ explains that the universe started like this, or gravity works like that, or subatomic particles behave like this, or humans evolved like that.”

Hum.

Does science really have it all figured out?  Here are some gentle reminders that geniuses are not as smart as we think they are:

There is not the slightest indication that nuclear energy will ever be obtainable.” – Albert Einstein, 1932

I think there is a world market for maybe five computers” – Thomas Watson, IBM Chairman, 1943

Heavier-than-air flying machines are impossible.” – Lord Kelvin, 1895

“... my imagination refuses to see any sort of submarine doing anything but suffocating its crew and floundering at sea.” – HG Wells, 1901

[all of the above, plus the picture, were taken from an excellent lecture by Paul Werbos at the 2018 Science of Consciousness Conference, put on by the Medical School at the University of Arizona]

Maybe we don’t know everything, but are there any major revolutions left for scientists to uncover?

Scientific American author John Horgan wrote an excellent book called “The End of Science“, claiming that we’ve had all the great scientific revolutions we’re going to have.  Science egos have a hard time swallowing Horgan’s position, and he rubs salt into the wound by explaining that science will never solve the really important questions, like  “Where did the universe come from?  How did life begin? How, exactly, does a chuck of meat make a mind?”  Continue Reading

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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