Race, Schools and Backpack Searches - R.M. v. State

March 24, 2014,

If you read this blog regularly, you know that we spend a fair amount of time in this space discussing the law as it applies to searches and seizures, whether it's at a home, in a car or on the street. As Florida's Third District Court of Appeals explains in R.M. v. State, the rules surrounding these issues change when the search takes places at a school.

apple-on-the-desk-1428611-m.jpgR.M., a minor, was determined delinquent after an incident in which he was found carrying a gun on the campus of his Dade County school. According to the Court, a young student at the school told an administrator that he'd seen three older students examining a gun in a school bathroom. The witness described the person holding the weapon as a tall, thin African American boy with a dark complexion and "a low 'afro' haircut." The witness also said that the person was wearing a red school polo shirt and skinny jeans and that he was carrying a backpack with a cartoon character on it. The school later said that there were roughly 60 black male students in the high school levels and that the described hairstyle, book bag and manner of dress were not common among those students.

The school's principal and its police officer checked R.M.'s classroom for the suspect and noticed that he fit the description. R.M. admitted that there was a gun in his backpack when the principal took it. He was arrested and charged with three gun possession charges. A trial judge denied R.M.'s motion to suppress the gun evidence at trial, in which he argued that there was not reasonable suspicion for the principal and police officer to seize his bag based on the suspect description. The trial court later found R.M. delinquent on all three counts.

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Florida Drug Conspiracy Law 101 - Hampton v. State

March 17, 2014,

"Conspiracy" is one of those legal terms that's often thrown around and of which many people are at lease vaguely aware, but relatively few actually understand. Generally, the law defines a conspiracy as an agreement between two or more persons to commit a criminal act. In Hampton v State, the state's Fifth District Court of Appeals explains the basic requirements of a conspiracy charge as they apply to alleged drug trafficking.

barbed-wire-1390182-m.jpgMr. Hampton was charged with conspiracy to traffic in cocaine after a police officer in Sanford learned that he was operating as a low-level drug dealer in the area. The officer first became aware of a supplier named Crichlow and later caught on to Hampton's alleged dealings after a wiretap revealed several conversations between Crichlow and Hampton in which they allegedly referred to drug transactions using code words. Crichlow testified against Hampton during trial, including by explaining the meaning of these code words and saying that he regularly sold up to five ounces of cocaine to Hampton. A jury later found Hampton guilty.

On appeal, Hampton argued that he should have been acquitted of the conspiracy charge because there was no evidence that he and Crichlow actually agreed to commit the same criminal act. In Davis v. State, the Fifth District overturned a similar cocaine trafficking conspiracy conviction, holding that the state failed to prove that there was an "agreement between the defendant and any person to commit the same act of selling, purchasing, delivering, or possessing cocaine." In that case, the court said there was only evidence that the defendant had agreed to buy cocaine from an associate and that the associate agreed to sell it to him. The buying and selling were not the same criminal act, according to the court's opinion.

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Double Jeopardy, Lesser Offense Rules in Florida Criminal Cases - Tuttle v. State

March 10, 2014,

Details matter. In Florida criminal cases, the difference between being charged with one crime over another can have a big impact on whether a criminal defendant is ultimately convicted and on how much time he or she may eventually have to spend behind bars. In Tuttle v. State, Florida's Second District Court of Appeals takes on what may at first seem like a technical dispute over legal intricacies. But it is exactly these kind of issues that can make or break a case.

crowbar-854266-m.jpgMr. Tuttle was charged with second degree murder, armed burglary and attempted home invasion stemming from a tragic, fatal incident in which two men who were armed and wearing masks entered a Florida home and shot one of the residents after demanding money and drugs. The victim's girlfriend was able to positively identify Tuttle as one of those men, according to the Court. A jury found Tuttle guilty of manslaughter with a firearm as well as armed burglary and attempted home invasion robbery.

Following trial, both Tuttle and the State agreed that he couldn't be found guilty on both the armed burglary and attempted home invasion because of the so-called "double jeopardy" rule, which generally provides that a person cannot be charged twice for the same crime. Section 775.021(a)(4), Florida Statutes states that a person charged with a crime can't be charged with the same criminal offense a second time after a conviction, acquittal or mistrial, nor charged with the same offense twice in the same indictment or information.

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Florida Prescription Drug Trafficking Cases Against Medical Professionals - State v. Sanchez

March 3, 2014,

While it may seem like a technicality, the specific section of a Florida criminal law under which a person is charged can make a huge difference in the outcome of the case. Prosecutors are required to be precise in charging individuals with crimes, and the failure to do so may result in those charges being dropped, dismissed or reduced. This is particularly true in drug cases, where the amount of drugs in question often determines the severity of any punishment. In State v. Sanchez, Florida's Fourth District Court of Appeals explains how charging precision is also important in prescription drug trafficking cases involving medical professionals.

pills-1213599-m.jpgMs. Sanchez, a licensed medical assistant and nurse practitioner, was charged with nine drug trafficking and conspiracy offenses. Prosecutors alleged that Sanchez knowingly sold various prescription drugs, including oxycodone, to people by using prescriptions "written in bad faith and not in the course of professional practice."

At trial, a debate arose as to whether Sanchez should be charged under Section 893.135(1)(c), Florida Statutes, or Section 893.13(8). Section 893.135(1)(c) applies to any person who knowingly traffics in various drugs, with an exception for medical practitioners who prescribe the drugs in good faith and as part of their practice. Violations range up to first degree felonies, based on the amount of drugs involved. Section 893.13(8) applies specifically to practitioners and makes it unlawful to knowingly make false statements or engage in fraud in order to help someone get the drugs or to write a prescription solely for the purpose of making money. Violations under this statute are considered third degree felonies.

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Florida Court Shoots Down "First Complaint" Exception in Sexual Battery Case - Browne v. State

February 26, 2014,

Sexual battery and assault cases are serious matters that should be investigated and prosecuted as such. That's why it's so important that both the applicable criminal laws and the evidentiary rules as to how they are enforced be followed strictly. In Browne v. State, Florida's Fourth District Court of Appeal explains one such rule - the general prohibition on hearsay evidence.

afternoon-beach-sunset-883192-m.jpgDr. Browne, a physician, was charged with attempted sexual battery stemming from an incident in which he allegedly forced himself on a female college student. According to the Court, the victim had been shadowing Browne while studying to work in the field and the incident occurred in Browne's car one evening after the two went to dinner. The victim claimed that Browne pushed up against her and began kissing her, despite her protests, and later exposed his penis and ejaculated. Browne then allegedly let the victim leave in her car, but began following her and made two calls to her cell phone. The victim later said that she went to a friend's house immediately after the incident because she was shook up and nervous about being followed.

At trial, the prosecution introduced as evidence a recorded "controlled call" in which the victim confronted Browne about his behavior. After the victim made clear that she didn't want him to force himself on her, Browne apologized and said he would "make sure it doesn't happen again," according to the Court. He also said "I didn't listen to you, you know, and it all happened." Browne later claimed that the encounter was consensual.

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When Can Cops Detain You? Musallam v. Florida

February 19, 2014,

You're walking down the street - or hanging out in a park - minding your own business and police officers approach. Can they stop or detain you? It depends, as Florida's Second District Court of Appeals explains in Musallam v. Florida.

light-1-714566-m.jpgMr. Musallam and some of his friends encountered local police officers after they were noticed smoking cigarettes in a public park. A park employee called police to report the illegal behavior and an officer later arrived at the scene and spoke with the men. Each of them, including Musallam, consented to be searched by the officer. The officer learned during the conversation that, although the men arrived at the park in a car, none of them had a valid driver's license. The officer instructed the men to leave the park on foot.

Shortly after the men left, the park employee observed Musallam return to the car and retrieve something from the passenger-side door pocket. The worker alerted the police officer, who stopped Musallam and noticed a bulge in his pocket that hadn't previously been there. When Musallam refused to consent to another search, the officer detained him and called for back up. Other officers arrived and Musallam advised that he had a gun in his pocket as they approached. The police officers retrieved the weapon.

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Florida Probation Violations and the Youthful Offender Act - West v. State

February 12, 2014,

Florida law provides certain protections to young adults who are charged with violating the terms of their criminal probations. Specifically, the state's Youthful Offender Act limits the length of a criminal sentence that can be imposed on a person between the ages of 18 and 20 for violating the terms of their probation. The system is intended to ensure that the State doesn't simply lock younger folks up and throw away the key, particularly for what might be relatively minor probation infractions. In West v. State, Florida's Third District Court of Appeals explains how the law distinguishes between "technical" and "substantive" probation violations.

duckings-on-a-canal-347839-m.jpgMr. West was sentenced to four years in state prison and an additional two years of probation after he plead guilty to charges of armed robbery and armed burglary. Four years later, his probation officer filed an affidavit with a local trial court, stating that West had violated his probation. Specifically the probation officer said West failed to report to the probation officer following his release from prison eight months earlier and leaving his county of residence without permission. The probation officer located West after he was arrested in Broward County for riding a bike without the appropriate light and possession of marijuana.

Finding sufficient evidence of the violations, a trial judge sentenced West to 10 years in prison for violating the terms of his probation.

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When Can Florida Cops Search Your House? Williams v. State

February 5, 2014,

In Williams v. State, Florida's Second District Court of Appeals explains some of the basic requirements that police must satisfy in order to get a warrant to search the home of a person suspected of selling drugs.

boca-raton-florida-home-house-670211-m.jpgMs. Williams was charged with drug possession after police in Tampa received a tip from a confidential informant about a 30-35-year-old woman selling crack cocaine from her apartment. The informant later identified Williams as the woman and pointed out her home as the place where she was allegedly selling crack. The officers maintained visual and audio contact with the informant during a "controlled buy" in which he purchased a small amount of the drug from Williams. He also confirmed that a car parked out front was registered to Williams.

The officers and informant executed another controlled buy the following day, after which the informant said Williams may have drugs and a gun in her car. The officers later searched the vehicle after stopping Williams for a traffic violation, but didn't find narcotics or a weapon. The cops ultimately obtained a warrant to search Williams home from a magistrate. They didn't mention the traffic stop or incorrect tip in seeking the warrant. A search of Williams' home recovered crack cocaine and marijuana, as well as three razor blades with cocaine residue, two digital weight scales and a handgun.

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The Hearsay Rule and Corpus Delicti in Florida Criminal Cases - J.B. v. State

January 29, 2014,

In J.B. v. State, The Fourth District Court of Appeals explains two important protections for criminal defendants in Florida: the hearsay rule and the corpus delicti requirement.

escalator-1094356-m.jpgJ.B., a juvenile, was arrested and charged with the theft of "fashion jewelry" from a Florida JCPenney store following an incident in which she allegedly put a bracelet on her wrist and left the store without paying for it. A security guard allegedly saw the theft occur and, along with another security guard, approached her and brought her back to the store. The guards then called the police and an officer later arrived on the scene and arrested J.B.

Neither the store manager nor the one security guard who allegedly witnessed J.B. steal the bracelet were still employed at the store at the time trial rolled around, and neither individual testified as witnesses during the proceedings. Instead, the second security guard, who didn't actually observe the alleged theft, testified that he joined the other guard to apprehend J.B. after the other guard told him that J.B. had put a bracelet on her wrist and left the store.

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Florida Court: Confrontation Clause Doesn't Apply to Air Bag Report - Peterson v. State

January 22, 2014,

The Sixth Amendment to the U.S. Constitution includes an important procedural safeguard for criminal defendants. Known as "The Confrontation Clause," it states: "In all criminal prosecutions, the accused shall enjoy the right to be confronted with the witnesses against him." In Peterson v. State, Florida's Second District Court of Appeals explains that the Clause has its limits, however. It applies only to "testimonial" evidence.

interior-car-details-4-223790-m.jpgMr. Peterson was charged with leaving the scene of a crash, vehicular homicide and driving on a license suspended or revoked license following a fatal incident in which he allegedly crashed into another person's car after running a red light. According to the Appeals Court, evidence was also presented showing that Peterson was intoxicated and speeding at the time of the accident.

At trial, the judge overruled Peterson's objections and allowed state prosecutors to introduce as evidence a computer-generated air bag control system report providing information about if and when Peterson applied the brakes prior to the accident and how fast he was traveling just before the crash. Peterson had argued that the report was testimonial hearsay and that it violated the Sixth Amendment's Confrontation Clause because he couldn't confront or cross-examine the computer that created the report. While experts testified about the information generated in the report, he also argued that their testimony was hearsay. Peterson was later convicted on all three charges.

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Suing for False Arrest in Florida - Bush v. City of Daytona Beach

January 15, 2014,

As seasoned criminal defense lawyers, we know very well that sometimes people are arrested and charged with crimes that they didn't commit. In those cases, the wrongly accused may want to sue the authorities for damages. In Bush v. City of Daytona Beach, the U.S. District Court for the Middle District of Florida explains some of the hurdles that may face a person seeking to sue a government agency for false arrest and other related claims.

security-fence-4-1398073-m.jpgMr. Bush was under the age of 18 when he was arrested in Daytona Beach in connection with an armed home invasion. He was held for nearly five months, first at the Volusia County Detention Center and then the Volusia County Branch Jail. He was later released when a key witness in the case told police that Bush wasn't responsible for the crime. Bush later claimed that he suffered mental and emotional anguish as a result of his time be was detained at the Volusia County Detention Center and then transferred to the Volusia County Branch Jail hind bars and that he also missed out on educational and employment opportunities during this time.

Bush sued the City of Daytona Beach, alleging claims for negligence, false imprisonment and violation of his civil rights under 42 U.S.C. ยง1983. He argued in particular that the City breached its duty to conduct a reasonable investigation before arresting him by failing to ensure that witness statements were reliable and failing to continue to conduct the investigation while he was in jail.

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When Is It Legal For Police To Stop You On The Street? - Mackey v. State

January 8, 2014,

In a July 2012 blog post, we wrote about Mackey v. State, a decision by Florida's Third District Court of Appeals in which the court held that a police officer driving through an area of Miami known for drugs and guns properly approached and patted down a man after seeing what the officer believed to be a gun protruding from his front pant pocket. More than a year later, the case made its way up to the state Supreme Court. The high court also said the search was legal, but clarified the standard for reviewing a "stop and frisk."

police-man-hat-994489-m.jpgMr. Mackey was convicted based on charges of carrying a concealed firearm and possessing a firearm as a convicted felon. His arrest occurred in Miami after a police officer driving in a marked patrol car discovered him standing adjacent to a fence outside of an apartment building. The officer later said that he observed an object poking out from Mackey's side pocket. After driving closer, the officer said that he saw a section of the handle protruding out, enough for him to identify it as a firearm, the officer later recalled.

The officer got out of his car, approached Mackey and asked him if he was carrying a weapon. Mackey said "no." The officer then patted Mackey down and felt a firearm in his pocket. Mackey was arrested for possession of a concealed firearm after admitting that he didn't have the requisite permit for the gun. The second charge was later added when prosecutors found out that Mackey had previously been convicted of a felony.

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Florida Meth Sentence Overturned for "Judicial Vindictiveness" - Baxter v. State

December 23, 2013,

In Baxter v. State, Florida's First District Court of Appeals recently reversed a 20-year jail prison sentence on an obscure, yet effective legal theory available to criminal defendants: "judicial vindictiveness."

key-largo-palms-872386-m.jpgMs. Baxter was charged with attempted manufacture of a controlled substance, unlawful possession of a listed chemical and arson to an occupied structure after she and a friend botched an attempt to make meth in a hotel room in Marianna. "On Halloween Day 2009, Ms. Baxter and codefendant, Damian Johnson, had two goals: make methamphetamine and have sex," the court explained. "They first embarked on the dangerous and toxic process of attempting to manufacture meth, neither being skilled in the task." The situation quickly turned dire when a plastic bottle in which Johnson was mixing the ingredients exploded in his hand and ignited, injuring Johnson and damaging the room.

Baxter initially accepted a plea deal in which she would be sentenced to two years in a drug offender program - nearly the first to be spent behind bars in county jail - followed by up to 13 years of probation, depending on how long it took her to pay restitution for the hotel damage. She later told the trial judge, who was apparently involved in the plea deal negotiations, that she wanted to withdraw the plea. Although the judge informed Baxter that she would be facing a potential 50-year sentence if the case went to trial, he allowed her to withdraw the plea.

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Evidence Falls Short in Florida Drug Conveyance Case - Delgado-George v. State

December 16, 2013,

Just because the state charges a person with various drug offenses, doesn't necessarily mean that prosecutors will be able to prove at trial that the defendant actually committed the specific violations. In Delgado-George v. State, Florida's Second District Court of Appeals tossed out a conviction on one significant drug charge for lack of evidence.

old-caddy-58997-m.jpgMr. Delgado-George was charged with marijuana and drug paraphernalia possession after Polk County police officers stopped his car for a traffic infraction in the parking lot of a local bar in January 2011. The officers said they smelled marijuana as they approached the car and that Delgado-George told them that he had been smoking the drug at a friend's house. When the cops asked Delgado-George whether he had any weapons or contraband on him or in the car, he responded by handing them a purple Crown Royal bag. Inside, the officers found seven individual bags containing what later tested positive as marijuana.

Following his arrest, the police said Delgado-George explained that he had the individual bags because he had intended to sell them inside the bar. He later denied making this statement, however, asserting instead that he'd bought the baggies for his own use and hadn't bothered to repackage the marijuana afterward. According to Delgado-George, he was waiting in the parking lot to meet a friend and discuss buying a car.

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Duress Defense in Florida Drug Cases - Stannard v. State

December 9, 2013,

There are a number of legal defenses available to criminal defendants in Florida depending on the circumstances of the given case. In Stannard v. State, Florida's Fifth District Court of Appeals explains one of those defenses: that the crime was committed under duress.

perscription-drugs-2-1160103-m.jpgMr. Stannard bought oxycodone from a dealer named "Pops" after a prescription for the drug he'd been given to treat knee pain ran out. He bought the drugs on credit because he was unemployed at the time and wasn't able to pay Pops the $150 he owed. The drug dealer and his associates started coming by to demand payment and threaten Stannard. He became so alarmed that he and his mother moved from the home in which they were living.

On the evening of April 18, 2010, Pops and his friends appeared at Stannard's new residence. They forced Stannard into a car, where he said one of the men told him that he was either going to "pay up" that night or get beaten so bad his mother wouldn't recognize him. According to Stannard, Pops later pulled out a fake prescription for oxycodone with Stannard's name on it and told Stannard that he was going to go into a local Walgreen's and fill the prescription in order to clear his debt. Stannard said Pops' associates went in to the store with him to make sure that he filled the prescription.

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