July 16, 2015

Florida Defendants who receive "withholding of adjudication" on a felony must be cautious

Florida judges have a special authority vested upon them to “withhold adjudication” in a criminal matter pursuant to Fla. Stat. §948.01. This means that the person who enters a plea of "no contest" or guilty plea to a felony charge may, depending on the nature of the felony, not be considered a “convicted felon” under current Florida law. To be offered or receive a withholding of adjudication a citizen generally will
gun.jpgnot have a much of a preexisting criminal history or has not been convicted of a felony in his or her past. The individual who receives a withholding of adjudication will not lose his or her voting rights and, again, under current Florida law, will not lose their right to possess a firearm in Florida once they have successfully completed probation.

However, a more complex and precarious situation exists in our federal court system for Florida citizens who have received a withholding of adjudication for a felony. Under currently existing federal law, a person currently may be prosecuted under 18 USC §922(g), possession of a firearm by a convicted felon, in federal court even if they have received a withholding of adjudication for a Florida felony. The United States Court of Appeals for the Eleventh Circuit (11th Circuit) is the federal court with appellate jurisdiction over all of the federal district courts in Florida, Alabama and Georgia. Pensacola is within the Northern Federal District Court of Florida.

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June 19, 2015

Confrontation Clause Not Applied to Child Hearsay Statements

Under Florida Statute 90.803(23) Florida courts may allow a witness other than the child testify as to what type of sexual abuse a child may have told them occurred under certain circumstances. In other words, an alleged sex crime child victim sixteen years of age or less does not have to testify at an accused's trial as to the specific allegations of abuse. Florida statutes allow that the alleged testimony of the child alleging sexual abuse may be admitted through the testimony of witnesses who claim to have heard the child make statements about being sexually abused. The trial court must hold a hearing to determine if the statement was made under "reliable" circumstances. If the court finds that the child's out of court statement is reliable the witness may testify if the child testifies or is unavailable. "Unavailable" is defined as a finding by the trial court that the child's participation in the trial or proceedings would result in substantial likelihood of sever emotional or mental harm. An accused must be notified no later than ten days before trial that the statement that qualifies will be offered at trial. So an accused can learn that his ex-wife who is battling him over child custody may testify as to what the couple's three year old child allegedly told her. Is that fair?

In Ohio v. Clark, 13-1352 (June 18, 2015), the United State Supreme Court held that the trial court's admission of out of court statements of a three year old child to his teacher wherein the teacher testified as to what the three year old told the teacher, was not a violation of the accused Sixth Amendment Right to Confrontation or Crawford v. United States. The Supreme Court stated "L. P.’s age, three, further confirms that the statements in question were not testimonial because statements by very young children will rarely, if ever, implicate the Confrontation Clause." (If you'd like to read the Ohio v. Clark opinion please clink on the link above).

If an adult witness can testify against an accused without the child testifying at trial doesn't this leave room for any testifying witnesses to lead or influence what statements were allegedly made by a child or teenager, in this case a three year old, as to what the child told the person?

I am not saying that what Clark did was right nor that he shouldn't go to prison. Nor am I saying anything derogatory about teachers --- it just so happens that teachers were the testifying adults in the Clark case.

Apparently, the child was dropped off at preschool when a teacher saw that the child had a bloodshot eye and red welts that looked like belt marks.The teacher asked “Who did this? What happened to you?” to which the child responded “Dee.” Clark was charged with various child abuse-related offenses and the court admitted the preschool teacher’s statement identifying the defendant as the perpetrator.

The Court adopted a general rule that statements made to people who are not law enforcement officers don't qualify as being “testimonial” for purposes of the confrontation clause's cross-examination requirement. No one cares for people who abuse children like Clark may have but the more general application of this decision which is considered by scholars to be a MAJOR US Supreme Court decision changing the law-- any adult can testify about what a child allegedly said to them without the other party ever being able to cross examine a a child 16 or less - could be a mother in a custody case, a father in a custody case, or a person charged with child abuse and could theoretically involve a child 13, 14, 15 or 16 years of age.

From reading the facts "Dee" Clark sounds like he should definitely be punished if guilty of the offenses charged. No child or teenager should suffer abuse.

However, my concern is how far will the system go to avoid the Confrontation Clause of the Sixth Amendment and the right of confrontation mandated by Crawford v. Washington and allow state statutes, like Florida's above, or the Federal equivalent statute, to dictate the admission of these potentially "questionable" statements.

For further information on sex crimes please see our website at the Law Offices of M. James Jenkins, P.A.

January 31, 2015

Federal Drug Conspiracy Cases Dismissed

Aggressive litigation by federal defense attorneys concerning over-zealous federal drug-war strategies resulted in federal prosecutors in the Northern District of Illinois, specifically Chicago, dismissing federal conspiracy charges these tactics have generated. The article in the Chicago Tribune on January 29, 2015, written by reporters Annie Sweeney and Jason Meisner, is entitled "Chicago Prosecutors Quietly Drop Charges Tied to Drug Stash House Stings."


The lengthy article states that federal prosecutors in Chicago have dismissed conspiracy drug charges against more than two dozen defendants accused of ripping off drug stash houses as part of controversial undercover stings that have sparked allegations across the country of entrapment and racial profiling.

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January 27, 2015

Disorderly Conduct and Obstruction Arrests In Pensacola

People need to be aware that, albeit often illegally, they may be arrested by merely asking questions to officers who are arresting someone else. The best thing to do is to observe as much information about the incident as possible from a distance, obtain, without interference, the name of the officer or the number of his or her squad car. police-at-protest-5-106059-m.jpg

Just asking where the officers are taking the person being arrested should not result in your arrest, but unfortunately in Pensacola, Pensacola Beach, etc., people are arrested for doing nothing more than asking these types of questions. Be careful. You can always find out information about your friend or loved one later by calling the Escambia County Jail at 436-9820 ask for booking.

As mentioned, people may be arrested for “disorderly conduct,” “obstruction,” or “resisting arrest without violence” for merely asking questions directed to law enforcement about why the officers may be arresting their friends or loved ones.

In order for a law enforcement officer to arrest someone for disorderly conduct or resisting arrest without violence, which is sometimes referred to as “obstruction of justice,” the officer must be engaged in a lawful duty and must have reasonable suspicion that the person arrested after “asking questions” had committed, was committing, or was in the process of committing a crime.
Florida’s Fourth District Court of Appeal held in Johnson v. Guevara, __ So. 3d __, 40 F.L.W. D257 (3d DCA 1/21/2015):

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December 12, 2014

Ivy League Law Schools too Traumatized over "Ferguson" can delay taking Final Exams

Law students at Harvard, Columbia and Georgetown Universities can elect to be excused from taking final exams if they feel disturbed by the grand jury decisions relating to the Ferguson and New York City decisions. As I understand it, this means that they would still have to take exams but could do so after receiving counseling and at a later date. I anticipate other law schools to follow suit if the administrations of these top tier law schools are allowing students to opt out and postpone taking finals. I think this acquiescing to law students’ demands is totally out of place. However, I disagree that law students and lawyers should be emotionless in how they approach their cases and careers as lawyers.

Many law professors in the academia elite feel this "opting out" to be totally inappropriate.

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September 12, 2014

Under Florida law "trafficking" in drugs can mean merely possessing a certain quantity of drugs without any evidence of distribtuion

In a recent Florida First District Court of Appeals decision evaluating a case from Escambia County Florida, the appellate court found brought home the draconian results of a long standing law that the mere possession of a drug that weighs over a certain threshold amount is considered to be "trafficking" under Florida law without any evidence the possessor of the drug intended to sell or distribute the drug. Florida may be the only state in the nation having laws that define mere possession of a set weight of drug without any evidence of distribution other than the mere possession of the drug is "trafficking." If anyone is convicted of a possessing a "trafficking" quantity of narcotics results in that person is subject to a "minimum mandatory" Florida state prison sentence.

In Brown v. State, 1D13-2540 (Fla. 1st DCA Sept. 10, 2014), the appellate court decided that because Ms. Brown possessed more than 28 grams of cocaine, the fact that the trial court allowed the narcotics officer to testify about a separate quantity of "white powder like substance" was consistent with cocaine, that the prosecution proved she possessed a separate quantity of lab tested cocaine in excess of 28 grams of cocaine the admission into evidence of testimony about the "white powdery substance consistent was consistent with cocaine," without any lab testing of that substance, was not relevant to ultimate issue that Ms. Brown possessed the lab tested excess of 28 grams of cocaine; hence, the case should not be reversed.

The mere possession of a threshold quantity of other drugs such as hydrocodone(lortabs), marijuana, Oxycontin, percocet and other controlled substances is considered trafficking and hence requires a minimum mandatory state prison sentence under Florida law. (Different threshold amounts apply to each drug, e.g. 25 pounds or more of marijuana requires a three year minimum mandatory; 28 grams or more of cocaine results in a three year minimum mandatory Florida state prison sentence).

The issue I have with this decision is did the prejudicial erroneous admission of the testimony of the other "white powdery substance consistent with it being cocaine" outweigh any probative value and how did the admission of this testimony prejudice the jury to conclude the actual lab tested cocaine Ms. Brown allegedly possessed was in excess of 28 grams?

August 23, 2014

Search and Seizure - Automobiles

In Florida, as in most states, often times there is a solid white line, otherwise known as a "stop line," that precedes the cross-walk at an intersection. In a recent case decided by one of Florida's District Court of Appeals (DCA), the Fifth DCA held that no part of your car may legally extend over the "stop line" or you may be legally cited by law enforcement for a violation Fla. Stat. 316.123(2)(a), a non-moving civil infraction. This statute requires a driver to stop “at” the stop line if one is marked. If no stop line is marked, the driver must stop before entering the crosswalk on the near side of the intersection. If there is neither a stop line nor crosswalk, the driver must stop near the entrance to the intersecting roadway to provide the driver with a view of approaching traffic. Thus, according to the court, the apparent purpose of the statute is to require a vehicle to stop before it is in a position where it could impede or hit pedestrians who might be in a crosswalk, or cross-traffic that could be in an intersection. The court in State v. Daniels, 5D13-2352, 2014 WL 1976269 (Fla. 5th DCA May 16, 2014), defined the word "at" to mean that no part of your car can be past the "stop line."

There are a couple problems with this interpretation. Many people can't see how much of the front of their car is over the stop line even if they intend to stop behind the stop line merely because of how their car is designed. The slightest portion of your car extending over the stop line is sufficient for the police to cite you. Also, often times, a driver must proceed past the "stop line" to determine if they can safely make a right turn at the intersection. Can a police officer then legally stop you if you have "creeped out" over the stop line so you can get a view of oncoming traffic in order to make a safe right turn? It seems the answer is yes. If so, leaving so much discretion with law enforcement when to stop a vehicle for such a minor transgression, may result in many people getting stopped if a police officer, after evaluating you and your vehicle, decides to take the time to stop and detain you to issue the traffic infraction. This may very well lead to more arrests for narcotics violations and other criminal traffic offenses, e.g. driving while license suspended, that often stem from mere non-criminal traffic law stops by law enforcement. My hunch is many officers won't stop most people, but if a driver has a certain profile, the officer will use this statute to initiate contact with the driver.

August 23, 2014

Can my cell phone be searched without a warrant in Florida?

In Smallwood v. State, 113 So. 3rd 724 (Fla. 2013), the Florida Supreme Court confronted the issue of whether a cell phone could be searched without law enforcement first obtaining a search warrant when the cell phone was seized during an arrest of an individual.

Smallwood had allegedly committed a robbery and the police when arresting Smallwood seized his cell phone. They went through his phone and found incriminating photographs of:
(1) A black and silver handgun with a crucifix draped over it, dated January 28, 2008 (four days after the robbery);
(2) An image of hands with engagement rings, dated January 29, 2008 (five days after the robbery);
(3) A black and silver handgun next to a fanned-out stack of money, dated January 28, 2008 (four days after the robbery);
(4) A photo of Smallwood's fiancée holding a bundle of money that is folded and secured with a rubber band, dated January 25, 2008 (the day after the robbery); and
(5) A photo of Smallwood holding a bundle of money that is folded and secured with a rubber band, dated January 25, 2008 (the day after the robbery).

The Florida Supreme Court, in a 5 to 2 decision, held that, in light of how electronic cell phones allow access to a huge amount of personal information of the cell phone's owner, if law enforcement were allowed to search an arrestee's cell phone without a warrant it is akin to providing law enforcement with a key to access the home of the arrestee. The Florida Supreme Court stated that in essence giving law enforcement access to an arrestee's cell phone would be like physically entering the arrestee's home office without a search warrant to look through his file cabinets or desk, remotely accessing his bank accounts and/or medical records without a search warrant. The Court held "[W]e refuse to authorize government intrusion into the most private and personal details of an arrestee's life without a search warrant simply because the cellular phone device which stores that information is small enough to be carried on one's person.

The Florida Supreme Court further held that such searches are not justified by either a concern for officer safety or concern for evidence preservation and are therefore unconstitutional. In 2009, the Supreme Court specifically limited the scope of warrantless searches incident to arrest. In Arizona v. Gant, 556 U.S. 332, 129 S.Ct. 1710, 173 L.Ed.2d 485 (2009), law enforcement officers arrested Gant for driving with a suspended license. After the police had placed Gant in handcuffs and taken him away from his automobile by securing him in a police car, two officers proceeded to search Gant's vehicle. During the search, they discovered a bag of cocaine in the pocket of a jacket located on the back seat of the vehicle. The U.S. Supreme Court held that the search of Gant's vehicle violated the Fourth Amendment. The Court first noted that a search incident to arrest only includes the arrestee's person and the area within his immediate control, i.e., the area into which he may reach to acquire a weapon or destroy evidence. (citing a 1969 US Supreme Court case: Chimel). The Gant Court then concluded that "[i]f there is no possibility that an arrestee could reach into the area that law enforcement officers seek to search, both justifications for the search-incident-to-arrest exception are absent and the rule does not apply." The US Supreme Court held that because Gant had been separated from his vehicle and was secured in a patrol car at the time of the search, the dual rationales (officer safety/destruction of evidence) for the search-incident-to-arrest warrant exception were not present, and the officers were required to obtain a warrant before they could search the vehicle. The U.S. Supreme Court concluded that because the officers failed to obtain a warrant, the search of Gant's vehicle was unreasonable under the Fourth Amendment.

Gant demonstrates that while the search-incident-to-arrest warrant exception is still clearly valid, once an arrestee is physically separated from an item or thing, and thereby separated from any possible weapon or destructible evidence, the dual rationales for this search exception no longer apply. Applying Supreme Court precedent from Chimel and Gant to the Smallwood case, the Florida Supreme Court concluded that law enforcement was authorized to take physical possession of Smallwood's electronic device used as a phone as part of the search incident to the arrest because the device was present on Smallwood's body. However, once the electronic, computer-like device was removed from Smallwood's person, there was no possibility that Smallwood could use the device as a weapon, nor could he have destroyed any evidence that may have existed on the phone. Accordingly, neither the officer protection nor the evidence preservation justification for the warrant exception applied. See Gant, 556 U.S. at 335, 129 S.Ct. 1710. Thus, pursuant to Gant, Florida law enforcement is constitutionally required to obtain a warrant before searching the contents of, and the data in, Smallwood's electronic device cell phone.

Unfortunately the Smallwood decision of the Florida Supreme Court draws a somewhat arbitrary distinction between cell phones and other items capable of storing sensitive personal information. Any clarity provided by this ruling is likely to be short-lived, as advances in technology will likely create new occasions to revisit the scope of the search-incident-to-arrest doctrine regarding cell phones.

One should also be aware that other jurisdictions have held that a search warrant is not necessary to search a cell phone and the Smallwood decision only applies in Florida. For example, in the 5th Federal Circuit, which encompasses Texas and Louisiana, the federal appellate court has held that a search warrant is not required. Traveler beware.

August 23, 2014

Sentencing - Federal

The Third Circuit Court of Appeals handed down an interesting ruling in US v. Bagdy, No. 13-2975 (3rd Cir. Aug. 21, 2014), reversing a Federal District Court's (trial court) revocation of supervised released despite calling the defendant's conduct "reprehensible." The Bagdy opinion states:

At issue on this appeal is whether supervised release may be revoked and an offender sent to prison based upon a Federal District Court’s finding that the offender acted in "bad faith" in relation to his obligation to make restitution to the victim(s) of his criminal conduct. Bagby had been ordered to pay back tens of thousands of dollars in restitution during the period of his supervised release, which is a form of probation given to someone who receives a sentence of incarceration in federal court.

In this case, although Appellant David Bagdy complied with the specifics of the District Court’s restitution order by ultimately paying more than one-third of a $435,000 inheritance he had received while on supervised release, he spent the rest of his inheritance on things for himself and went on what the Court described as a "lavish spending spree" that dissipated the balance of the inheritance while delaying the actions intended to modify the restitution order. The Appellate Court, albeit it found Bagdy’s conduct reprehensible, concluded that his supervised release could not be revoked for such bad faith conduct because Bagdy did not violate a “specific condition” of supervised release in relation to the restitution obligation. Under the District Court's Supervision Order he had been ordered to pay back a certain amount of restitution at differing intervals. So, although he didn't put all of his inheritance towards restitution the Appellate Court held he was not required to do so and the Appellate Court reversed the trial court's order revoking his supervised release.

This issue comes up somewhat frequently in Florida State court cases and Federal cases where someone has been ordered to pay restitution during their period of probation or supervised release, is set up on a payment plan by their probation officer, and then the person being supervised comes into a large amount of money. Unless the Judgment and Sentence specifically states that if the person acquires a large amount of money during their period of probation or supervised release and, if so, that money shall be paid towards restitution, someone cannot have their probation or supervised release violated and possibly be sent to prison if they have simply been set up on a payment plan to payback the restitution.

October 14, 2013

Spice--Illegal in Florida and under Federal Laws

Spice, promoted as a synthetic marijuana, is illegal in Florida, Alabama and under Federal laws. It wasn't that long ago when this product was available in convenience stores and elsewhere. This product was also labeled "K2," "herbal incense" or "potpourri."

An act to ban the use and distribution of the drug was proposed by the US Senator Chuck Grassley of Iowa as the David Mitchell Rozga Act. It was approved into legislation by the United States Congress in June 2011.

On July 10, 2012, President Barack Obama signed the Synthetic Drug Abuse Prevention Act of 2012 into law. It banned synthetic compounds commonly found in synthetic marijuana, placing them under Schedule I of the Controlled Substances Act.

Prior to that, some compounds within synthetic cannabis (HU-210) were scheduled in the USA under federal law, while others (JWH-073) have been temporarily scheduled until final determination of their status can be made. The Drug Enforcement Administration (DEA) considers it to be a "drug of concern", citing "...a surge in emergency-room visits and calls to poison-control centers.

Adverse health effects associated with its use include seizures, hallucinations, paranoid behavior, agitation, anxiety, nausea, vomiting, racing heartbeat, and elevated blood pressure." A lot of these misbranded drugs, including XLR11, are from suppliers and manufacturers in China. The mere importation of the misbranded drug is in a violation of various federal laws.

Spice, herbal incense, etc. is unquestionably illegal in Florida. My ER doctor friends tell me too many kids where coming into the emergency rooms in psychotic states after ingesting the product.

The penalties for possession of spice vary from jurisdiction to jurisdiction but law enforcement is taking it very seriously. There are various labels for "spice" but generally the package is marked "not fit for human consumption" when it arrives from China, relabled and then sold to end users or other manufacturers.

In addition to K2 and Spice, other street names include Black Mamba (Turnera diffusa), Bombay Blue, Fake Weed, Genie, and Zohai. According to Partnership at Drugfree.org, other names also include Bliss, Blaze, JWH -018, -073, -250, Yucatan Fire, Skunk and Moon Rocks.

The penalties for manufacturing or distributing it are extreme and many cases are being brought in federal courts for manufacturing or distribution of the product. Also, money's earned through the illegal importation an distribution of these drugs may be subject to forfeiture under the Federal and/or State Money Laundering statutes.

We are here to help you if you find yourself under arrest for possession of this drug or under suspicion for manufacturing or distribution in both State and Federal Courts. See our page under Drug Trafficking for further information. In the meantime be well and stay healthy.