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Articles Posted in Search & Seizure

IMG_0179-e1519940395141-300x142It’s pretty rare that you get a chance to meet your heroes.  I haven’t.  But years ago, when I was playing in bands, our band manager Sarah met the lead singer of our favorite band.

I couldn’t wait to hear from Sarah about her encounter, she actually interviewed him.

Needless to say, even though his music was brilliant–the man himself was severely lacking.  Sarah was deflated and she learned the hard way the old cliche ‘never meet your heroes’.  Part of this cliche is rooted in the fact that a person’s genius in one area of life doesn’t mean that the person is great in all areas of their life.  We all know that a great actor rarely has any sort of superior wisdom over the bum on the street.  As Pat Sajak noted, “Trust me, one’s view of the world isn’t any clearer from the back seat of a limo.”

Now, let’s get to some legal stuff.  My apologies for the rough segue.

If you’re accused of possession of a controlled substance, there are only two ways that you can be convicted of this crime: First, the state may prove that you “actually” possessed the drug.

Meaning, the drugs were in your hand.  Or, the drugs were in your pocket, sock, bra, anywhere on your person. Continue Reading

weed-marijuana-300x200Remember those scratch n sniff stickers growing up?  It seems weird that, somehow, you can put the smell of just about anything onto a sticker.  Fruity smells are pretty popular: orange, grape, apple, strawberries. These stickers have evolved since I was a kid, and if you go on Amazon as much as I do (come on, you know you do), you’ll find scent stickers for popcorn, avocado, and yes, animal smells.  Even unicorns.  Hey, why not? My guess is that unicorns smell like a rainbow.

Now, just because something “smells like” an apple, or a bunny rabbit, doesn’t actually mean that there is an apple somehow engrained upon a sticker.  I hate to break it to you, but your nose can be fooled.  Your nose can lead you to false conclusions.

I remember growing up in St. Louis and at about age 15, I went to my first arena concert.  It was at the “Checkerdome” (destroyed decades ago, but fond memories linger), and the band was Loverboy.

As I would come to learn, Checkerdome concerts were like a bubble of fairly lax marijuana laws in the same way that Indian reservations host more gambling options than other places.  At the beginning of the show, as soon as the lights went out, half the place lit up.  There was so much marijuana smoked in that building that even the folks not smoking weed would probably test positive for the next 30 days.  So, when my dad picked me up from the show–he was pissed.

“Son, do you want to tell me something?”

“No dad, it was an awesome concert.  They had these lasers, it was great.”

“Son, you were smoking weed, weren’t you?”   I wasn’t.  Not technically.  But as I soon realized, every inch of me smelled like it.  I have a married friend whose wife uses a similar test to smell for evidence of cheating, but that’s a story for another day.

Supposedly, law enforcement officers have better scent detection than the rest of us, but the conclusions they draw from their sniffs may not be as reliable as they once were.  There are legal consequences to an officer detecting an odor of cannabis.  If an officer smells the odor of marijuana coming from your car, everything & everyone in your vehicle can be searched.

The reason for this is that the odor of cannabis supposedly provides an officer probable cause that something illegal is afoot.  Probable cause is a squishy subject, one that entire seminars and books are devoted to (well, maybe not an entire book, but several chapters).  When we say that an officer has “probable cause,” we mean that the officer reasonably believes there is “a fair probability that contraband or evidence of a crime will be found in a particular place.” Illinois v. Gates, 462 U.S. 213 (1983). Continue Reading

If you’re a rude person, there are all sorts of ways to express yourself.

In a similar vein, if you want to escalate the tension of a situation, there are all sorts of ways to transform the moment into a bigger dealvid-e1568755194369-225x300 than it really is.

One way to spice things up is to put a phone in somebody’s personal space.

“I’m recording you!  What did you just say?  Say it again, I dare you.”

As you may recall, video cameras used to be really expensive.  Only major news networks had the money to annoy public officials or celebrities with cameras.  Now, the potential annoyance has spread to us all.

Welcome to the future.

Sure, we have a Right to Privacy, but technology is creating all sorts of potential privacy violations that were not contemplated by the writers of the Constitution.

Even doorbells are now creating privacy issues. Continue Reading

Science can explain everything.cropped-message-300x188

As I sit here typing, neurologists can explain how the light from the screen is processed by my retina, which is directly connected to my brain.  Some scanner out there (fMRI?) could probably map out my visual cortex as I’m looking at this screen.    Another branch of science could probably explain how my brain is sending signals to my fingers so that I can hunt & peck this article.  Scientists have no problem mapping out the function of things and figuring out their structure.  Easy stuff.

The tough question is, why should these structures give rise to any sort of feelings?  Sure, science can explain everything–except how I feel.   I’m sure some coffee scientist out there can drill down into how the delicious smell of coffee first hits my nose, which then sends a signal to my brain, which then causes me to rush to the Keurig machine and retrieve that precious liquid that gets me through the rest of day.  But, no scientist can tell me how that coffee is going to taste.

No, we’re not going to dive into “the hard problem of consciousness” today (or ever?), as I’m running out of words (web promoter people tell me to keep it under 1,000 words.  Sorry), and you’re running out of interest.  Suffice to say that, even though there are plenty of limitations on science, certain criminal cases are begging for a bit of attention from the white coats.  You need science to prove certain allegations.  You need science to defend certain allegations.  We’re going to talk about just such a case today.

Demetrius Nugent was convicted of trafficking in oxycodone based upon lots of pills found in a car he was driving.  Nugent v. State2019 Fla. App. LEXIS 89333 (Fla. 2d DCA 2019).

Here’s what happened: the Lee County Sheriff’s office was conducting a drug investigation, and they had their eye on a red Mustang that kept making odd trips in and out of a neighborhood.  They followed the Mustang to a convenience store, where they then observed a Nissan pull up next to it.  Then, someone hopped out of the Nissan and into the Mustang.  The Nissan person exited the Mustang with something in his hand, but the cops didn’t know what it was.  The Nissan leaves the convenience store and naturally, the police follow.

Now, remember what I said upfront: the police are conducting a drug investigation.

And, how do you find drugs?

Well, you’ve got to come up with a reason to stop that Nissan. Continue Reading

cell-phone-prohibited-300x295You’ve seen this movie before and it ends with a mom crying.  A mom who will never be the same.

And, you hear this all the time–speed kills.

And, you hear this all the time–don’t drink and drive.

The case for today is G.A.Q.L. v. State but G.A.Q.L. is a juvenile offender so we don’t use his name, we use initials.  I’m going to call him “G” for short.  2018 Fla. App. LEXIS 15240 (Fla. 4th DCA October 24, 2018).

Based on the statements above, you now know what happened, but let me give you the facts anyway.  “G” was speeding, wrecked his car, and killed one of his teenage passengers.  “G” is a juvenile, and his blood-alcohol level was a 0.086.  Basically, that’s over four times the legal limit for minors, the limit for minors being a 0.02.

“G” survived the crash and another passenger also survived.  That passenger decided to chat with the police.

The surviving passenger told the police that “G” had been drinking vodka that day (why get in the car with him? They’re kids, remember?  And, I’ve rode with friends on occasion that, in hindsight, was a not so smart idea).  The passenger told the police she was communicating with “G” via his iPhone that day and even after the crash.  These communications became evidence of sorts, and the police were able to obtain a warrant to search “G”s iPhone 7.

Why is important for you to know that this was an iPhone 7?  Well, there’s a problem with iPhone’s.

The police can’t crack them. 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

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

ky home.jpgAccountability is an important part of the relationship between our government and its citizens. Sure, we citizens can’t know everything, and that’s why a small percentage of our budget is known as the “Black Budget”. Black budgets are fine, so long as they represent some covert operations overseas trying to capture the terrorists de jour. But, there are also times when the government shows up at your front door. In cases like this, you would expect some accountability.

Hopefully, you’ve never had your house ransacked by 15 storm troopers at 3:30 a.m. I haven’t either, but I’ve seen pictures, and these homes are left a wreck (home search warrants are often conducted while you are sleeping, FYI). This sort of invasion of privacy can leave quite a scar. Imagine waking up to lots of guns and men with deep football coach voices barking out orders to remain still. A search warrant requires the home occupants to sit there in their undies (or less) while 12+ armed men proceed to stare at your significant other’s revealing sleepwear. No, you can’t put clothes on, as any search for clothing may just be an attempt to destroy evidence or find a gun. As you might expect from a male dominated endeavor like a home search, somehow overweight men are permitted to put on some clothes, but the ladies are required to simply hang out in their revealing nighties–while a dozen men take turns gawking. I’m just saying.

Anyway, such massive government invasions will leave a citizen asking the simple, age old question “Why?” Believe it or not, under current Florida law you are not entitled to know why. Yes, this is a ridiculous law, and I’m here to expose it.
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lens.jpgSome stories make me wonder what is happening to America. Some stories remind me that our government is out of control. This is one such story. This story makes me sick, and I hope you feel the same way. Let’s delve right in, because you’re not going to believe this.

A 15 year old girl sent her 17 year old boyfriend some sex pics of herself from her iPhone and iPad. The boyfriend reacted in the same way that any 17 year old boy would react–he sent her back a sexy video, involving his aroused penis. I know, this is shocking behavior. This is an outrage! How dare these kids play “spin the bottle” with their iPhones, using technology to produce and exchange such smut. By the way, doesn’t it seem that new technology is rarely used to make the world a better place? Take the internet. What was (is) the internet used for initially? A faster, cheaper way to view porn. What are the new smart phones being used for? A faster, cheaper way to produce said porn.

How did the police get involved? As is often the case, the girl’s mother cracked the weak pass-code on her daughter’s iPhone, and called the police to accuse her boyfriend for the production and distribution of child porn; ignoring, of course, her own daughter’s actions which started this whole thing. And, if I had a dollar for every mom who blames the other kid for her own child behaving badly, I’d be a rich man . And no, the prosecutors did not arrest, and did not charge, the 15 year old girlfriend for initiating this exchange. However, legally speaking, this sounds a like a decent case of entrapment and temporary insanity, as no 17 year old boy could resist his girlfriend’s invitation to exchange such behavior. There are plenty of studies out there on adolescent brains, and I’m pretty sure these studies would support me on this. Let’s face it, no young skull full of mush can resist such an invitation. I’m pretty sure that the old “spin the bottle” game that would get me grounded back in the 80’s has now become a felony sex crime, especially if the kids video tape the event. Naughty behavior among consenting juveniles has extremely serious consequences. Welcome to the new age, to the new age….

Here comes the shocker. After being arrested for possession of child pornography and manufacturing of child pornography–the police forced the 17 year old juvenile boy to expose his penis to them so that they could take pictures of it, in the hopes that these pictures could be used as evidence to prove that said penis matched the penis found on the 15 year old girlfriend’s iPhone video. Yep, our government created child pornography to prove a child pornography case! The irony. I can’t make this stuff up. And, it gets worse.
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