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).

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.

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);

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.

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.

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.

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 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.

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.

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).