Thursday, December 11, 2014

Criminal Law | Search Warrants

Coronado v. State, 39 FLW D2113b (Fla. 2d DCA) – October 8, 2014
Deputies responded to a location to serve an outstanding arrest warrant.  Upon arriving, they noticed a grey pickup truck parked at the premises.  A registration check disclosed that the tag on the truck was registered to an Audi which had been reported stolen in 2013.  The officers made contact with the owner of the property, and after determining that the subject of the arrest warrant was not present, asked her about the truck.  She advised that the truck belonged to her son, and called him outside.  He advised the officers that he had found the tag in a ditch, and kept it.  During the conversation the deputies noticed numerous vehicles and car parts on the premises. The defendant explained that he scrapped cars and repaired vehicles for his friends.  The deputies sought and received permission to walk around the property looking for the stolen Audi.  During the walk, one of the deputies noticed the odor of marijuana emanating from a small shed in the yard, which was located about thirty feet from the house.  They sought permission to search the shed, which was denied. Based on these events, the deputy drafted a search warrant affidavit requesting to search not only the shed, back yard, and vehicles on the property, but also the residence, alleging that probable cause existed that the residence was being used in violation of Chapter 893.  The warrant was granted.  No marijuana was found in the shed, nor stolen vehicles/parts found in the yard, but a small amount of methamphetamine was located during the search of the residence.  During the suppression hearing, the deputy testified that he had smelled burnt marijuana coming from the shed, and included the residence in the warrant because in his experience it was not uncommon to locate items of evidentiary value in a home which was so close to another structure believed to contain contraband, such as the shed.  The defendant argued that the odor of marijuana from a shed does not extend probable cause to the home.  The trial court denied the suppression and admitted the evidence.  The defendant appealed.  The Second District Court of Appeal reversed the trial court, finding that the warrant application failed to establish probable cause the search the residence.  The evidence was suppressed.

Criminal Law

Scott v. State, 39 FLW D2458b (Fla. 4th DCA) – November 26, 2014
Law Enforcement were conducting surveillance of a residence for the purpose of executing an arrest warrant on someone named R.Q.  During the surveillance, the defendant exited the residence.  The officers approached defendant, at which time he denied being R.Q., and provided them with his name.  The officers were unable to confirm his identity via computer check, so the defendant invited them into the residence while he looked for his ID.  He was unable to locate it, and he and the officers returned outside.  The officers asked defendant to sit on the porch while they continued their efforts to confirm his identity.  A few minutes later, the defendant walked back into the house, locked the door, and exited through the rear of the residence.  The officers saw defendant jump the back fence and attempt to flee, but he was caught and arrested for Resisting an Officer without Violence (it was later established that he was not the person named in the arrest warrant).  At trial, the defendant moved for a judgment of acquittal (JOA), arguing that his interaction with the officers constituted a consensual encounter, and therefore he had the right to end it however and whenever he wanted.  The court denied the motion, and the defendant was convicted.  This appeal ensued. The Fourth District Court of Appeal held that while fleeing a valid investigatory stop could support a resisting charge, the interaction with the defendant in this case did not constitute a valid detention.  The trial court was reversed, and the JOA was granted.

Friday, August 22, 2014

Changes to Florida Criminal Traffic Laws

In 2012, there were nearly 70,000 hit and run crashes in the State of Florida which resulted in 17,000 injuries and 166 fatalities.  This number of fatalities equates to nearly 3 Floridians killed each week in hit-and-run crashes.

On February 15, 2012, Michele Traverso was on his way home from an evening of drinking when he ran over two cyclists and fled the scene.  One of those cyclists, Aaron Cohen was killed and the defendant received a sentence of twenty-two months of incarceration.

In response, the Florida Legislature began to make proposals to Florida Statute §316.027 that were contained in Senate Bill 102.  This Bill became law effective July 1, 2014.  Some of the changes to Florida Statute §316.027 include the following:

·        Leaving the Scene of an Accident resulting in bodily injury is now a 2nd degree felony rather than a 3rd degree felony;

·        A minimum mandatory penalty of 4-years shall be imposed for a conviction resulting in the death of a person;

·        Increases the mandatory minimum term of imprisonment from 2-years to 4-years for a conviction while driving under the influence (DUI);

·        Imposes a minimum 3-year license revocation;

·        If there is a finding that the victim was a “vulnerable road user”, the offense may be ranked one-level higher than specified in the Criminal Punishment Code;

·        Allows a defendant to make a motion requesting the court to depart from the mandatory minimum term of imprisonment unless the violation was committed while the defendant was DUI;

·        Authorizes the State to object to the defendant’s motion and authorizes the court to grant the defendant’s motion if there is a finding that the mandatory minimum sentence would constitute or result in an injustice.

Friday, August 8, 2014

Changes to Orlando DUI Laws ǀ Drunk Driving Laws

For those who were charged with the offense of Driving Under the Influence (DUI) prior to July 1, 2014, Florida Courts would impose the condition of the ignition interlock device only individuals who were either charged with a subsequent DUI (see Florida Statute §316.193(2)(a)(3)) or with a DUI where there was a blood alcohol or breath alcohol level that measured in excess of 0.150 or had a minor in the car (see Florida Statute §316.193(4)).

Following the 2014 Legislative Session, Florida Statute §316.193 has been amended by adding §316.193(2)(c).  In addition to the penalties already listed in §316.193(2), Florida Courts may now impose the following:

the court may order placement, at the convicted person’s sole expense, of an ignition interlock device approved by the department in accordance with s. 316.1938 for at least 6 continuous months upon all vehicles that are individually or jointly leased or owned and routinely operated by the convicted person if, at the time of the offense, the person had a blood-alcohol level or breath-alcohol level of .08 or higher.

In addition, the amendments made to Florida Statute §316.193 authorize a Court to dismiss an order of impoundment or immobilization, as a result of DUI, if the defendant provides proof to the Court that a certified ignition interlock device has been installed on all vehicles individually or jointly leased or owned, and routinely operated by the convicted person. (see Florida Statute §316.193(6)(i)).

Finally, Florida Statute §316.193(6)(j)(1) authorizes a Court to order a person to participate in a “qualified sobriety and drug monitoring program,” authorized by the Department, in addition to the ignition interlock device requirement.  Participation in this program will be at the person’s sole expense.  However, it should be noted that at the current time, there are no Department approved “qualified sobriety and drug monitoring programs.”

Tuesday, August 5, 2014

Orlando Theft Suspensions

Florida Statute 812.0155 permits courts to suspend the driving privileges of an individual convicted of a misdemeanor theft related offense in violation of s. 812.014 or s. 812.015.  As is customary due to "Separation of Powers", a court could not order the Department of Highway Safety and Motor Vehicles to issue the offender a hardship license. 

Now, following the 2014 Legislative Session, Florida Statute 812.0155(5) authorizes a court that suspends the driver license of an individual for an offense relating to theft, to DIRECT the DHSMV to issue the person a license for business purposes only, if the person is otherwise qualified.

Changes to Florida Drug Laws

It has long stood in the State of Florida that anyone over the age of 18-years who was charged with and convicted on a violation of Chapter 893, Florida Statutes, was subject to having their driving privileges suspended for a period of two-years. That meant that anyone who was convicted of possession or sale of, trafficking in, or conspiracy to possess, sell, or traffic in a controlled substance was subject to the two-year suspension.  

However, now following the 2014 Legislative Session, we have seen a change that can be found in the wording of Florida Statute §322.055 that details the license revocation period for persons over the age of 18 who have been convicted of alcohol, drug and tobacco offenses.

Now, if you are over the age of 18 and are convicted of a violation of Chapter 893, Florida Statutes, you are now subject to a license suspension of one-year. 

Thursday, July 3, 2014

2014 Criminal Laws

Florida Statute §893.135 which governs Florida’s drug trafficking laws was enacted for the purpose of combatting high-level drug traffickers and dealers.  The penalties for violating any section of this statute were harsh.  Drug traffickers would be faced with minimum-mandatory periods of imprisonment and substantial fines.  On its face, this appeared to be an idea that would not be met with much opposition.

However, what the statute failed to take into account were the large numbers of addicts who would find themselves caught in this web for simply possessing a predetermined weight of drugs despite the fact that these individuals had no intent whatsoever to sell or traffic their drugs.  Things only got worse when the State of Florida cracked down on trafficking in prescription narcotics (oxycodone and hydrocodone) that individuals were obtaining from the so called “pill mills”, or worse yet, teenagers were gathering from their parent’s and grandparent’s medicine cabinets.  Now, individuals who otherwise had clean criminal records and who had previously been prescribed these narcotics for medical reasons and later became addicted found themselves facing substantial prison time.

Needlessly incarcerating these individuals who were never the target of Florida Drug Trafficking laws were costing taxpayers millions of dollars every year to incarcerate.  Many groups spoke in opposition arguing that society would be better served to provide these people with treatment versus incarceration. 

It appears that the Florida Legislature has finally listened.  After July 1, 2014, penalties will change for those charged with Trafficking in Hydrocodone and Trafficking in Oxycodone. 

Trafficking in Hydrocodone
Minimum Mandatory Sentence
4 grams or more, but less than 14 grams; after July 1, 2014 changed to 14 grams or more, but less than 28 grams
3 years + $50,000 fine
14 grams or more, but less than 28 grams; after July 1, 2014 changed to 28 grams or more, but less than 50 grams
15 years + $100,000 fine; after July 1, 2014 changed to 7 years + $100,000 fine
28 grams or more, but less than 30 kilograms; after July 1, 2014 changed to 50 grams or more but less than 200 grams
25 years + $500,00 fine; after July 1, 2014 changed to 15 years + $500,000 fine
Offenses after July 1, 2014: 200 grams or more, but less than 30 kilograms
25 years + $750,000 fine
Trafficking in Oxycodone
Minimum Mandatory Sentence
4 grams or more, but less than 14 grams; after July 1, 2014 changed to 7 grams or more, but less than 14 grams
3 years + $50,000 fine
14 grams or more, but less than 28 grams; after July 1, 2014 changed to 14 grams or more, but less than 25 grams
15 years + $100,000 fine; after July 1, 2014 changed to 7 years + $100,000 fine
28 grams or more, but less than 30 kilograms; after July 1, 2014 changed to 25 grams or more but less than 100 grams
25 years + $500,00 fine; after July 1, 2014 changed to 15 years + $500,000 fine
Offenses after July 1, 2014: 100 grams or more, but less than 30 kilograms
25 years + $750,000 fine

Wednesday, June 25, 2014

Criminal Defense

The Fourth Amendment is still alive.  In a unanimous decision (9 – 0 for those of you keeping score), the United States Supreme Court held that law enforcement may not search the cell phones of criminal suspects upon arrest without a warrant.  The justices said smart phones and other electronic devices were not in the same category as wallets, briefcases, and vehicles -- all currently subject to limited initial examination by law enforcement.

The issue arose following the arrests and subsequent conviction of defendants in Massachusetts and California.  In these cases, United States v. Wurie, No. 13-212 and Riley v. California, No. 13-132, the defendants were convicted, in part, after phone numbers, text messages, photos and addresses obtained from personal electronic devices linked them to drug and gang activity.  Those cases were appealed to the high court, giving it an opportunity to re-enter the public debate over the limits of privacy rights, with a focus on the ubiquitous cellphone and its vast storage of information and video.

Chief Justice John Roberts, writing for the Court stated, that “the fact that technology now allows an individual to carry such information in his hand does not make the information any less worthy of the protection for which the Founders fought, our answer to the question of what police must do before searching a cell phone seized incident to an arrest is accordingly simple — get a warrant."