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.

June 13, 2013

Can You Record Without Someone Knowing -- No, But Maybe?

What used to be clear is no longer so. Chapter 934 of the Florida statutes prohibits "any person" from recording oral communications without consent and disclosing such recordings. Simply put, you could not record a conversation with someone if they didn't okay it first. That was, until recently. On June 7, 2013, the Second District Court of Appeals ruled in McDade v. State that such may not always be the case. The court held, based upon the 1985 Florida Supreme Court opinion in State v. Inciarrano, that a citizen does not have an expectation of privacy in what they say if the content of the statement is something that society is not willing to protect.

Mr. McDade was recorded by his step-daughter in the bedroom of his home without his knowledge. The court wrote that "though he did not use sexually explicit language, he appeared to be asking her to have sex with him." The Second District found that society would not accept that there was a privacy interest in the comments made by Mr. McDade and therefore, no law was broken. Whether you have a right to privacy depends on "what" you say.

So what does this mean? The ruling of the Second District now requires that individual judges across the state determine what society thinks is acceptable. Courts will decide on a case-by-case basis if the "content" of a statement is against societal standards. If it is, no law is broken and the recording can be used against someone in court. If it is not, then the person recording has committed a felony and the statement can't come into court. This will be a difficult rule for courts to apply consistently across the state. What is acceptable by society in Miami may not be acceptable in Pensacola.

The problem is this -- a citizen does not know if they can record a conversation until it's over.

The dissenting opinion, written by Judge Villanti, found that the Florida Supreme Court in Inciarrano said that whether someone had an expectation of privacy in their conversation was based upon "where" they made the statement, rather they "what" they said. While not condoning the advances made by Mr. McDade, Judge Villanti acknowledged the strong expectation of privacy in your own home that Florida law has always recognized. Because McDade made the statements in his own house, despite what he said, he had an expectation of privacy. Finally, Judge Villanti also concluded that "societal standards" should be determined by the legislature, not the courts. If exceptions to the rule are to be carved out, the legislature should be the one to do it.

Chapter 934 allows law enforcement to secretly record a suspect; it also allows an individual citizen to record a suspect if they are working with law enforcement. What is has never allowed was a private citizen, on their own, wearing a wire and recording a conversation in a private setting without you knowing.

The Second District has asked the Florida Supreme Court to review their ruling in McDade. Hopefully we will know, sooner than later, what are privacy rights are in Florida.

We post these blogs to help keep you informed about your rights. Please contact the Law Offices of M. James Jenkins & Associates, P.A. -- we will stand strong with you in your toughest times.

June 5, 2013

Law Enforcement's Taking of DNA samples upon arrrest

On June 3, 2013, the United States Supreme Court in Maryland v. King has ruled criminal suspects can be subjected to a police DNA test after arrest but before trial and conviction. The Supreme Court used a privacy-versus-public-safety policy rationale that potentially could have wide-reaching implications.

The issue in this ruling was whether taking genetic samples from someone held without a warrant in criminal custody for "a serious offense" is an unconstitutional "search."

It is routine in Florida that after someone has enerered a plea in a felony case, the person's DNA is taken by a buccal swab (q-tip inside the mouth) regardless of whether the person is adjudicated guilty.

The US Supreme Court, in a 5-4 decision concluded the taking of a DNA sample by a buccal swab is reasonable to assist law enforcement in detecting crimes in serious cases and upheld a Maryland state law that allowed the taking of the sample from a citizen at the time they were arrested
.
The Court held "[W]hen officers make an arrest supported by probable cause to hold for a serious offense and they bring the suspect to the station to be detained in custody, taking and analyzing a cheek swab of the arrestee's DNA is, like fingerprinting and photographing, a legitimate police booking procedure that is reasonable under the Fourth Amendment," the majority wrote.

The impact of the Supreme Court's new ruling is yet to be seen. There is a state law that provided for such procedure in Maryland. Thus far, Florida has no such law. However, with this decision finding Maryland's law constitutional it would not be surprising if many states enact such a law during their next legislative session.


Your rights are important to us and that's why we provide this blog to our readers. Please contact us at M. James Jenkins Law Office and Associates, P.A. anytime. We stand willing and able to assist you in any manner we can.

June 2, 2013

Residential Search held Invalid by Appellate Court

The First District Court of Appeals, which includes Pensacola, Escambia, Santa Rosa, Okaloosa and Walton Counties, issued a favorable opinion upholding the Fourth Amendment rights of a homeowner against unreasonable searches and seizures this last week. In Powell v. State, 38 Fla. L. Weekly D1140a (Fla. 1st DCA 2013) the issue was whether police officers entering Powell’s property and peering into a window of his mobile home late at night after receiving an anonymous tip an hour earlier that marijuana plants were inside was a search that violated the Fourth Amendment.

The appellate court held that the officers' intrusion into the curtilage of the mobile home, on a part of the property on which they had no legal right to be, and peering through a window a hand's length away at a sharp angle into an otherwise private part of the home, constituted a search in violation of the Fourth Amendment under both the expectation of privacy test and the intrusion test.

Either way, this entry into the protected private space of the home was an improper attempt to verify an anonymous tip. The court reversed the convictions, which were based entirely on evidence obtained due to the unlawful search. The First DCA reversed the trial court's denial of the motion to suppress and it is likely that ultimately all evidence in Mr. Powell's case will be suppressed and the case will have to be dismissed by the prosecutor's office.

I wrote an lengthy article that was published in the Florida Association of Criminal Defense Lawyers Magazine a while back about law enforcement being in a place and obtaining incriminating evidence when they had no right to be on the defendant't property when they observed the evidence and obtained an alleged incriminating statement from my client. The name of the article is "Defining the Amorphous World of Curtilage for Fourth Amendment Purposes" and can be read by clicking the hyperlink of the articles name. The article goes into detail about what law enforcement officers can and cannot do when attempting to obtain incriminating evidence when entering upon a citizen's residential property.

If we can be of help to you with the issue of search and seizure, be it in a residential setting, automobile search or even a personal physical search please contact us at M. James Jenkins and Associates. Again, if you are approached by law enforcement, under any of these circumstances it is generally best to politely refuse to speak to the officers until you have sought the advice of legal counsel. (There are certain times when you may not legally refuse a search, for example if law enforcement has a search warrant, or if they have probable cause to search your car or your person. However, often refusing to allow law enforcement to search when the search or the questioned posed to you can be voluntarily answered, sometimes refusing to acquiesce or "just give in" with what ever the officer asks you to do, will make the difference between being arrested and not being arrested. We are here to help you and be your advocates to ensure everything is done to protect your rights and the rights of all law abiding citizens.


March 28, 2013

U. S. Court Rules No More Dog Sniffs at Door to Establish PC

The United States Supreme Court issued its opinion in Florida v. Jardines on March 27, 2013, holding that a dog sniff at the front door of a house where the police suspected drugs where being grown constitutes a search for purposes of the Fourth
Amendment.

On occasion if law enforcement does not have sufficient probable cause for a search warrant they will employ a drug detection dog to determine if the dog alerts to the presence of narcotics from outside the door of the suspect's residence. What the Jardine case states, is that the use of a dog constitutes a "search" under the Fourth Amendment. Although I have had not time to read the 5:4 decision completely to determine it's impact on other cases where dogs are used to establish probable cause for searches, such as automobiles, this decision seems to say that a dog alert alone will not be sufficient probable cause standing alone to support a search warrant.

In the early 1990s, I had a major federal drug conspiracy trial in the Pensacola Division of the Norther Federal District Court where officers used a dog sniff from outside my clients apartment door to establish probable cause for the issuance of a search warrant when executed revealed the presense of a large quantity of cocaine.

I will up date this post further once I have had time to read the Jardines opinion to determine what if any impact it may have on other dog sniff search and seizure cases under the Fourth Amendment. The US Supreme Court recently reversed Florida's supreme court in Florida v. Harris which placed the burden on the prosecution to show the false alert and other training and credentialing of a cannine in the context of the search of an automobile. As citizens of the State of Florida and as U.S. citizens we have a greater expectation of privacy in our homes than in our cars. (See previous blog posts for this issue).

The Florida Supreme Court's case that was heard by the U.S. Supreme Court on March 27, 2013 was State v. Jardines, 73 So. 3rd 74 (Fla. 2011), which ruled that the dog sniff at a private residence was an unlawful intrusion into the Fourth Amendment rights of a citizen to be free of unlawful searches and seizures in their home. The State case is very lengthy and describes in detail the distinctions between different types of issues involving canine searches.


March 6, 2013

The Search of Smart Phones, I Pads and other Electronic Devices

A Florida Senate Bill passed the Florida Senate Criminal Justice Committee on Monday, March 4, 2013, that would require law enforcement to obtain a search warrant before it could search the smart phone or any cell phone of someone who has been arrested. There is also “rumblings” of a bill that would require law enforcement to specify which programs would be searched in a computer that was legally seized by law enforcement when executing a search warrant giving them permission to search a home and seize computers, electronic devices, etc. when police have a warrant based upon probable cause that the computer was used to commit a crime. The new Senate phone bill was objected to by law enforcement and prosecutors. The genesis of such bills of course the abundance of personal information that most people store on cell phones or I Pads and other such electronic tablets or smart devices. Why should law enforcement have access to private information that has nothing to do with the crime being charged against the individual who possesses the smart phone or I Pad, etc.? Law enforcement officers when they are issued a search warrant based on probable cause to search a home for a shotgun, for instance, are not allowed to look in bathroom cabinets or kitchen drawers or any place a shotgun could not be located. (This is not to say this does not happen). In my opinion, in many instances, there really is no logical difference between searching areas of a smart phone device for evidence of a crime if there is no probable cause that evidence of the crime is located there. However, it’s my understanding that this bill is far more sweeping. Currently, if a person is arrested law enforcement currently believes it has “carte blanche” authority to search the seized cell phone and go through every text, photo, email, etc. without a warrant. In the Northern District of Florida, Pensacola and elsewhere, I have had cases where law enforcement has obtained a search warrant for a cell phone because the law is not well settled. However, this seems to be more the exception that the rule.
The “smart phone bill” is by no means law yet---- albeit the Senate Criminal Justice Committee approved the bill (SB 846) on a 5-2 vote it will then be sent to the Judiciary Committee. Then if it passes there is needs approval from the Appropriations Committee before it can go to the floor of the Senate for an overall vote. Then a House of Representatives companion bill (HB 797) by Rep. Carlos Trujillo, R-Miami, is awaiting its first committee hearing.
The Senate bill also would require police to get a court to sign off on informational tracking of an electronic device for investigative purposes. In other words, law enforcement could not track your cell phone without a court order. (This is somewhat analogous to the recent U. S. Supreme Court case, Jones, cited in a blog post below, where police must obtain a warrant to use tracking devices for vehicles placed by law enforcement to track the whereabouts of suspect vehicles).
Search and seizure rules involving smart phones or electronic storage devices are the subject of two cases pending before the Florida Supreme Court. In Smallwood v. State, a cell phone search was upheld by the First District Court of Appeal which is the appellate court that covers the law in Northwest Florida including Pensacola, Destin, Milton, etc. However, in the Fourth District Court of Appeal has ruled on real-time tracking of such devices, such as that mentioned in Jones, above, finding that people have no real expectation of privacy while driving around on the open road but that appellate court knowledge that the changing nature of technology for cell phone tracking begged for a higher court ruling on the issue. This ruling is at odds with Jones, which is a U.S. Supreme Court ruling.

February 19, 2013

Law Enforcement obtaining incriminating admissions after Miranda

In certain instances, law enforcement can use private individuals to obtain incriminating statements from suspects or defendants who have previously invoked their Miranda rights and who may be in custody without violating the Miranda rule. In fact, this is only one of a myriad of techniques detectives can utilize to obtain a confession or an incriminating admission. Statements made to a person working for the police, the defendant’s wife , fellow inmate in jail, mother, father, a codefendant, alleged victim or someone who the suspect or defendant believes to be a fellow inmate, codefendant or state employee may be used against the suspect or defendant.

However, there are certain limitations placed on government agents using another individual to obtain an incriminating statement from a unsuspecting defendant. For example, if the government promises to give positive testimony, to speak on the informer’s behalf in exchange for information obtained or if the police officer arranges with the jailer to have the informant and the defendant placed in the same cell, may lead to suppression of the incriminating statements.
However, the prosecutor or law enforcement agency cannot avoid the Miranda rule’s constitutional limitations merely by using a private individual as its agent. The examination for determining whether private individuals are agents of the government when interrogating a suspect is whether, in consideration of all the circumstances, the individuals acted as instrument of the state. To determine whether a private individual acts as an instrument of the state when obtaining incriminating statements from a suspect, courts look to (1) whether the government was aware of and acquiesced in the conduct, and (2) whether the individual intended to assist to the police or further his or her own ends. An important factor used by the Courts in determining the admissibility of incriminating statements is if the informer was acting without direction from the state agent in how to go about obtaining the statement(s) or if the informer had been promised anything in return for his obtaining statements from the unwitting defendant.

I have seen many cases where, although the police are recording the phone call, an alleged victim of a sexual offense, often a child may have contact with the perpetrator while “wired” and ask the perpetrator questions that are designed to illicit an incriminating response. With the recorded apology or “it will never happen again” recorded statement the defendant has little defense. (This scenario is one in which the defendant has not invoked his Miranda rights and is not in custody).

For more information on what to do if you are under investigation for an alleged sexual offense or any other offense please contact The Law Offices of M. James Jenkins and Associates, P.A. We will be glad to offer you competent advice to protect your rights when you need to speak to someone right away. You, as a general rule, should never speak or allow yourself to be questioned about a crime without first contacting your attorney. We are here to help you anyway we can.