West Palm Beach Criminal Lawyer Blog

9 Ways to Prevent An Eyewitness from Misidentifying an Innocent Person

Ron Chapman — Tue, 14 Feb 2012 12:44:13 -0500

In the case of State of New Jersey versus Larry Henderson, the New Jersey Supreme Court found that observing the following nine things may help prevent an eyewitness from misidentifying an innocent person:

1. A police officer who conducts a live lineup or a photographic lineup with an eyewitness should not be familiar with the suspect because the officer may leak information by consciously or unconsciously communicating to the witness which person in the lineup is the suspect.

2. A police officer who conducts a lineup should begin with instructions to the eyewitness that the suspect may or may not be in the lineup and that the witness should not feel compelled to make an identification.

3. A suspect should be included in a lineup consisting of look-alikes because an array of look-alikes forces a witness to examine her memory.

4. The greater the number of choices in a lineup, the more likely it is that the procedure will function as a reliable test of the eyewitness' ability to distinguish the actual perpetrator of the crime from an innocent person.

5. Lineups should not contain more than one suspect; having multiple suspects increases the possibility of the eyewitness making a lucky guess.

6. Police officers should not signal to an eyewitness that she correctly identified a suspect; such confirmation can reduce a witness' doubt and engender a false sense of confidence. That sort of feedback can also falsely enhance an eyewitness' recollection of the quality of her view of a crime.

7. "Mugshot exposure" occurs when a witness initially views a set of photos and makes no identification but then later selects someone who appeared in a previous lineup. Studies have shown that while 15% of witnesses mistakenly identified an innocent person viewed in a lineup the first time, that percentage jumped to 37% if the eyewitness had seen the innocent person in a prior mugshot. Therefore, the police should avoid the practice of mugshot exposure.

8. "Mugshot commitment" occurs when a witness identifies a photograph that is then included in a later lineup. Studies have shown that once eyewitnesses identify an innocent person from a mugshot, a significant number then reaffirm their mistaken identification even if the real suspect is located in the lineup. Therefore, the police should also avoid the practice of mugshot commitment.

9. A "showup" is essentially a one-person lineup: a single suspect is shown to an eyewitness in order to see if the witness can identify the suspect. Showups often occur soon after a crime is committed. Many experts believe that compared to lineups showups fail to provide an adequate safeguard against witnesses with poor memories or those who are inclined to guess. That is because every time a mistaken identification occurs in a showup, an innocent person is, by definition, misidentified. Essentially, showups make it easier for eyewitnesses to mistakenly identify innocent people. Evidence that has been gathered casts doubt upon the reliability of showups that are conducted more than two hours after a crime has been committed. Thus, as with lineups, police officers who conduct showups should instruct witnesses that the person they are about to look at may or may not be the actual perpetrator of the crime and that they should not feel pressured to make an identification. That being said, lineups are still the preferred method of identification because of the inherent suggestiveness of showups.

GPS Tracking Devices, Search Warrants, and Your Car

Ron Chapman — Sat, 04 Feb 2012 16:53:02 -0500

In the case of the United States versus Antoine Jones, the U. S. Supreme Court answered the following question:

Do the police have to get a valid search warrant before they are allowed to put a GPS tracking device on your car and then use that device to monitor the movements of your car?

The answer to this question is Yes! In arriving at this conclusion, the Supreme Court stated that:

When the police attach a GPS tracking device to your car, they are physically occupying your private property for the purpose of obtaining information about your movements.

Physically occupying your private property for the purpose of obtaining information about your movements is considered a "search" within the meaning of the Fourth Amendment to the U.S. Constitution.

Barring certain exceptions, the police have to obtain a valid search warrant before they are allowed to search your private property.

Words Alone are Sometimes Not Enough to Convict You of Disorderly Conduct

Ron Chapman — Fri, 20 Jan 2012 17:37:55 -0500

In the case of C.N. versus the State of Florida, a juvenile with the initials "C.N." was convicted of the crime of disorderly conduct based upon the following set of facts:

"C.N. was in a crowd of teenagers that spilled into the streets around the Boys and Girls Club in Lakeland after a dance. The Lakeland Police Department received a number of complaints about noise, property damage, and fighting in the area. Officers were dispatched to break up the crowd. One officer testified that the situation was chaotic and that many of the teens were ignoring law enforcement's orders. Several people were arrested and those arrests tended to calm the crowd. He said the police had been taught to look for instigators and to arrest them.

After the officer had been in the area for about an hour, he observed C.N. shouting and using foul language. He feared C.N.'s actions might instigate fights. According to his testimony, the officer instructed the teens in the vicinity to move along, but C.N. failed to do so and rolled her eyes. He told her to leave or he would arrest her. She did not move so the officer attempted to take her into custody for committing the crime of disorderly conduct. C.N. pulled away from his grasp and tightened her arms at her side, all the while continuing to curse. The officer was finally able to put her in a police cruiser and drive away from the crowd."

C.N. appealed, and Florida's Second District Court of Appeal agreed with her that the prosecutor had failed to prove the charge of disorderly conduct. The appellate court noted that when disorderly conduct is based upon words alone (as it was in C.N.'s case), a prosecutor must show that the words either:

1. Caused a crowd to gather, thereby resulting in safety concerns; or

2. That the words incited a crowd to engage in an immediate breach of the peace.

In this case, the evidence presented at trial failed to prove that C.N.'s shouting and foul language incited others to fight, thereby resulting in a breach of the peace. The evidence failed to prove it because:

1. The arresting officer testified that no one was fighting in the area he was patrolling. Moreover, if he had seen a fight, he would not have concentrated on what C.N. was doing; and

2. The crowd spontaneously gathered after a party. There was no evidence that C.N. prompted the gathering, and the officer testified that he had been at the scene of the disturbance for at least an hour before he even noticed C.N.

I've Just Launched a New Website!

Ron Chapman — Sun, 15 Jan 2012 16:09:45 -0500

I've just launched a new website about my law firm called Chapman Criminal Defense. It discusses the different areas of criminal law that I practice in such as federal crimes, sex offenses, and sealing records. Hopefully you will find it interesting and informative.

You May Legally Resist an Illegal Arrest

Ron Chapman — Fri, 13 Jan 2012 16:50:10 -0500

In the case of C.W. versus the State of Florida, a juvenile, whose initials were "C.W.," was arrested for the crime of resisting arrest without violence. The relevant facts of this case are that:

"[C.W. was] standing in the road, a couple of feet from the swale, and refusing to move off of the street when the officer asked him to, although the record also shows that there was no traffic on the street at the time. The record does reveal that C.W. was talking to another boy, his cousin, when they saw the police car slowly approaching. The officers veered slightly around the kids, and asked them to move out of the roadway. When they did not, the officers parked, approached the boys and ordered them to move out of the road and onto the unpaved swale. At this point, the record shows that C.W refused to step out of the street and used profanity. The officers then arrested him."

Florida's Third District Court of Appeal reversed C.W.'s conviction for resisting arrest without violence and in the course of doing so noted that an individual cannot be convicted of this crime unless the prosecutor is able to prove both that:

1. The officer was engaged in the lawful execution of a legal duty; and

2. The defendant's action constituted obstruction or resistance of that lawful duty.

But what exactly is a "legal duty?" Under Florida law, legal duties include such things as:

1. Service of process;

2. Legally detaining a person; or

3. Asking for assistance in an emergency situation; or

4. Impeding an officer's undercover activities by acting as a "lookout" during the commission of a crime.

In this case, the appellate court ruled in C.W.'s favor because:

1. The officers were not engaged in the lawful execution of a legal duty when they initially asked C.W. to step out of the street.

2. Although the officers' initial request that C.W. move a small distance out of the road was a reasonable part of their job as community safety officers, they had no legal duty to insist that C.W. comply with their request and to enforce their insistence by arresting him when the surrounding circumstances failed to warrant such action.

3. There was no evidence that C.W. actually interfered with traffic, and the mere possibility that he might eventually interfere with traffic was insufficient to justify the officers' actions.

The court concluded by stating that "[i]f an arrest is not lawful, then a defendant cannot be guilty of resisting it . . . the common law rule still remains that a person may lawfully resist an illegal arrest without using any force or violence."

Changes in Florida's Clemency Law

Ron Chapman — Mon, 26 Dec 2011 20:08:50 -0500

Clemency has been defined as "the forgiveness of a crime or the cancellation (in whole or in part) of the penalty associated with it."

I posted an article on my website, Florida Criminal Records: Frequently Asked Questions, that was written by Florida attorney Reginald Garcia in which he discusses changes in Florida's clemency law that went into effect earlier this year. I highly recommend Mr. Garcia's article to anyone who is interested in learning more about these significant changes in the law.

Robert Champion's Death Ruled a Homicide: Now What?

Ron Chapman — Sun, 18 Dec 2011 02:03:00 -0500

An article that appeared two days ago in the Orlando Sentinel reported that an autopsy performed on Florida A & M drum major Robert Champion concluded that his death was a homicide. But what type of homicide will those responsible for his death ultimately be charged with? first degree murder? second degree murder? third degree murder? manslaughter?

My guess is that they may likely be charged with the crime of manslaughter which Florida law defines as "[t]he killing of a human being by the act, procurement, or culpable negligence of another, without lawful justification . . . and in cases in which such killing shall not be excusable homicide or murder."

In the case of Darrin Terranova versus the State of Florida, Mr. Terranova was charged with committing the crimes of manslaughter and aggravated battery after beating another individual who ultimately died from his injuries. Because Robert Champion also died after being beaten, it may be the case that those responsible for his death will be charged with the same offenses that Terranova was charged with and convicted of.

A Judge's Discretion to Deny Your Petition to Expunge Your Criminal Record is Limited

Ron Chapman — Thu, 08 Dec 2011 19:06:43 -0500

In the case of Wells versus the State of Florida, Kim Wells appealed a judge's decision denying her petition to expunge her criminal record without first holding a hearing. An article that I wrote on my website, Florida Criminal Records: Frequently Asked Questions, examines the Wells case and why it was that a court of appeals agreed with her.

Self-Defense in a Case of Aggravated Battery

Ron Chapman — Sat, 15 Oct 2011 18:21:36 -0500

In the case of William Stieh versus the State of Florida, Mr. Stieh was charged with the crime of aggravated battery after stabbing another individual. The relevant facts of Stieh's case are as follows:

"Conneally, the victim; the victim's girlfriend; Stieh, . . . ; and Jeffrey Flaherty, [Stieh's] friend—engaged in a consensual sexual encounter. Conneally and his girlfriend were invited to join Stieh and Flaherty in the hotel room rented by Stieh. After the three men had sex with Conneally's girlfriend, she and Conneally left the hotel. Shortly after leaving, the two realized their wallets were missing, and they returned to Stieh's hotel room to search for them. Upon arriving, Conneally initiated a physical confrontation with Flaherty. In defense of himself and Flaherty, Stieh stabbed Conneally three times.

At trial, the [prosecutor] did not contest that the victim was significantly larger in stature than Stieh—at 5 feet 5 inches tall and 130 pounds—and Flaherty—at 5 feet 7 inches tall and 160 pounds. It was also uncontested that the victim was demeaning, demanding, and aggressive during the sexual encounter prior to the stabbing. Finally, of the four people directly involved in the incident, only the victim testified that he was not angry upon his return to the hotel. The other three testified that the victim was angry and that he forced entry into Stieh's hotel room. The victim, however, testified that he only became angry upon finding the wallets under a trash can outside of the hotel room. Thus, there was a consensus among the parties and witnesses that the victim either arrived angry and looking for a confrontation or became angry and confrontational after locating the wallets that appeared as though they had been intentionally hidden.

The victim testified that while he and Flaherty were standing outside of the room, he found the wallets under a trash can. He became angry and shoved Flaherty back inside the hotel room. The two fought, the victim shoving Flaherty, and Flaherty punching the victim. At some point during the skirmish, the victim realized he was bleeding and left the hotel room. The victim did not testify to a physical altercation with Stieh and did not recall being stabbed.

After the altercation and stabbing, two law enforcement officers arrived on the scene and interviewed Stieh and Flaherty. Both officers testified that Stieh admitted stabbing the victim. Officer Murray stated that Stieh told him he was scared and thought the victim was going to hurt Flaherty. Stieh also told the officer the victim was 'off the chain.' Officer Stewart testified Stieh told him that he had left the room after the victim and the victim's girlfriend returned to look for the wallets and that when he returned to the room, the victim was attacking Flaherty. Stieh then told the officer that the victim charged him, that he told the victim to 'get back,' that the victim charged again, and that Stieh stabbed him.

[Stieh]presented the testimony of several witnesses, including the victim's girlfriend, Flaherty, and Stieh. Conneally's girlfriend testified that the victim was angry and yelling when they returned to the hotel. She stated the victim punched and shoved both Flaherty and Stieh. Although she did not see the actual stabbing, she testified she did see the victim and Stieh standing face to face.

Flaherty testified the victim was screaming that he was going to kill both Stieh and Flaherty for stealing the wallets. He stated the victim attacked him and dragged him from his bed. Flaherty yelled for Stieh's help, and Stieh attempted to separate the victim and Flaherty. According to Flaherty, the victim then threw Stieh around the room and up against the door. At some point, the victim forced Stieh out of the room, and Flaherty did not see the stabbing.

Stieh testified the victim returned to the hotel screaming and threatening to kill Stieh. He confirmed Flaherty's account of the events, adding that he attempted to leave the hotel room but was caught by the victim and they exited the room together. Stieh testified that upon seeing the wallets in the hallway, the victim yelled that he was going to kill them. Stieh again tried to escape, this time back into the room, but the victim caught him. The victim attempted to punch Stieh, and Stieh picked up a knife from the dresser and stabbed the victim. Stieh testified he was scared for his life."

After Stieh had presented all of his evidence, Stieh's lawyer asked the judge to find Stieh not guilty because the prosecutor had failed to disprove Stieh's theory of self-defense. The judge did not do so, and Stieh was ultimately convicted of aggravated battery.

On appeal, Florida's Second District Court of Appeal stated that when an accused individual presents a prima facie case of self-defense at his trial, the prosecutor has to prove beyond a reasonable doubt that the accused did not act in self-defense. If the prosecutor fails to do that, the trial judge must find the accused not guilty. The Court continued on to state that according to Florida law:

"A person who is not engaged in an unlawful activity and who is attacked in any other place where he or she has a right to be has no duty to retreat and has the right to stand his or her ground and meet force with force, including deadly force if he or she reasonably believes it is necessary to do so to prevent death or great bodily harm to himself or herself or another or to prevent the commission of a forcible felony.

The legal presumption that a defendant has a reasonable fear of great bodily harm sufficient to justify the use of deadly force applies when

[t]he person against whom the defensive force was used was in the process of unlawfully and forcefully entering, or had unlawfully and forcibly entered, a dwelling, residence, or occupied vehicle, or if that person had removed or was attempting to remove another against that person's will from the dwelling, residence, or occupied vehicle."

The Second District Court of Appeal noted that in Stieh's case:

1. Stieh had a right to be in the hotel room because he had lawfully rented the room for the night;

2. Under Florida law, the hotel room qualified as a dwelling or residence;

3. Only one witness, the victim Conneally, testified that he did not forcibly enter the hotel room in search of the wallets. However, three other witnesses testified that Conneally forcibly removed Stieh from the room at one point during the altercation. Therefore, under Florida law, Stieh had a right to defend himself;

4. Furthermore, two of the prosecutor's witnesses supported Stieh's self-defense argument when they testified that immediately after the stabbing, Stieh told them that he was acting in defense of Flaherty. The Court observed that defense of another person is permitted under Florida law.

The appellate court concluded that because the prosecutor failed to present legally-sufficient evidence to overcome Stieh's theory of self-defense, the lower-court judge should have found him not guilty of aggravated battery. Accordingly, the Second District Court of Appeal sent Stieh's case back to the lower court with instructions that Stieh should be found not guilty.

How to Determine When a Drug Dog's Alert to a Vehicle is Reliable

Ron Chapman — Mon, 10 Oct 2011 07:42:25 -0500

In the case of Clayton Harris versus the State of Florida, the Florida Supreme Court was asked to decide this question: When does a drug-detection dog's alert to the outside of a vehicle provide a police officer with probable cause to search the inside of that vehicle without a search warrant?

The relevant facts in the Harris case are as follows:

"[O]n June 24, 2006, Liberty County Sheriff's Canine Officer William Wheetley and his drug-detection dog, Aldo, were on patrol. Officer Wheetley conducted a traffic stop of Harris's truck after confirming that Harris's tag was expired. Upon approaching the truck, Officer Wheetley noticed that Harris was shaking, breathing rapidly, and could not sit still. Officer Wheetley also noticed an open beer can in the cup holder. When Officer Wheetley asked for consent to search the truck, Harris refused. Officer Wheetley then deployed Aldo. Upon conducting a 'free air sniff' of the exterior of the truck, Aldo alerted to the door handle of the driver's side.

Underneath the driver's seat, Officer Wheetley discovered over 200 pseudoephedrine pills in a plastic bag wrapped in a shirt. On the passenger's side, Officer Wheetley discovered eight boxes of matches containing a total of 8,000 matches. Officer Wheetley then placed Harris under arrest. A subsequent search of a toolbox on the passenger side revealed muriatic acid. Officer Wheetley testified that these chemicals are precursors of methamphetamine. After being read his Miranda rights, Harris stated that he had been cooking meth for about one year and most recently cooked it at his home in Blountstown two weeks prior to the stop. Harris also admitted to being addicted to meth and needing it at least every few days."

The Supreme Court stated that whether or not a drug dog's alert to the outside of a vehicle provides an officer with probable cause to search the inside of that vehicle without a search warrant depends upon the dog's reliability to detect illegal substances within a vehicle. In order to establish such reliability, a prosecutor must present evidence of the following things:

1. All records and evidence that are necessary to allow the trial judge to evaluate the dog's reliability in detecting illegal substances;

2. Due to the fact that there is no uniform standard for the training and certification of drug-detection dogs, a prosecutor must explain the training and certification so that the trial judge can evaluate how well a dog is trained and whether it falsely alerted during its training;

3. If a dog did falsely alert during its training, a prosecutor must provide evidence of the percentage of false alerts;

4. A prosecutor must keep and present records of a dog's actual performance in real cases, including the dog's successes (defined as alerts where illegal substances were found that a dog was trained to detect) and failures (defined as false or unverified alerts where illegal substances were not found that a dog was trained to detect);

5. A prosecutor must be given an opportunity to present evidence explaining the significance of any false alerts, as well as a dog's ability to detect or distinguish residual odors. (An example of a residual odor is if someone were to have an odor of cocaine on his hands and he then touches a car's door handle, that handle might, in turn, have a residual odor of cocaine on it.); and

6. A prosecutor must present evidence of the experience and training of the police officer handling the dog.

In Mr. Harris's case, the Supreme Court concluded that the dog's alert to the truck's door handle did not provide his handler with probable cause to search the inside of the truck without a search warrant for the following reasons:

a. Although the dog's training records revealed that he performed satisfactorily 100% of the time during part of 2005 and 2006, no testimony was presented about whether his satisfactory performance included any false alerts;

b. Little evidence was presented about the details of the dog's training, including whether his trainer was aware of the locations of the drugs and whether the training simulated a variety of environments and distractions;

c. The trainer did not keep records of the dog's false alerts;

d. No evidence was presented regarding the criteria necessary for the dog to become certified;

e. No evidence was presented regarding the dog's ability to detect residual odors; and

f. By itself, the dog's alert to the door handle of Harris's truck did not provide the arresting officer with probable cause to believe that drugs were present inside the truck.

Minimum Mandatory Sentencing and the Federal Crime of Being a Convicted Felon in Possession of a Firearm

Ron Chapman — Sun, 02 Oct 2011 14:34:13 -0500

It is a federal crime for a convicted felon to be in unlawful possession of a firearm. The maximum sentence for that crime is typically 10 years in prison. If, however, a convicted felon has three prior convictions for a violent felony or serious drug offense when he unlawfully possesses a firearm, the punishment increases to a minimum prison sentence of 15 years.

But what exactly is a violent felony? In recent years the United States Supreme Court has addressed this question in several cases including the recent case of Sykes v. United States. In that case, Marcus Sykes pled guilty to being a convicted felon in possession of a firearm. Two of his prior felony convictions were for armed robbery, while a third conviction was for the felony offense of vehicle flight in violation of Indiana's law regarding resisting a law enforcement officer. The facts of Sykes' vehicle-flight violation are as follows:

"After observing Sykes driving without using needed headlights, police activated their emergency equipment for a traffic stop. Sykes did not stop. A chase ensued. Sykes wove through traffic, drove on the wrong side of the road and through yards containing bystanders, passed through a fence, and struck the rear of a house. Then he fled on foot. He was found only with the aid of a police dog."

The trial judge who sentenced Sykes decided that he had three prior violent felony convictions on his criminal record, one of them being the Indiana vehicle-flight offense. Sykes appealed that judge's decision. Unfortunately for Sykes, the U.S. Supreme Court agreed with the trial judge's decision.

In ruling that the Indiana vehicle-flight offense was indeed a violent felony, the Supreme Court reasoned that:

"The attempt to elude capture is a direct challenge to an officer's authority. It is a provocative and dangerous act that dares, and in a typical case requires, the officer to give chase. The felon's conduct gives the officer reason to believe that the defendant has something more serious than a traffic violation to hide. In Sykes' case, officers pursued a man with two prior violent felony convictions and marijuana in his possession. . . . Because an accepted way to restrain a driver who poses dangers to others is through seizure, officers pursuing fleeing drivers may deem themselves duty bound to escalate their response to ensure the felon is apprehended. . . . And once the pursued vehicle is stopped, it is sometimes necessary for officers to approach with guns drawn to effect arrest. Confrontation with police is the expected result of vehicle flight. It places property and persons at serious risk of injury. Risk of violence is inherent to vehicle flight. Between the confrontations that initiate and terminate the incident, the intervening pursuit creates high risks of crashes. . . . It is well known that when offenders use motor vehicles as their means of escape they create serious potential risks of physical injury to others. Flight from a law enforcement officer invites, even demands, pursuit. As that pursuit continues, the risk of an accident accumulates. And having chosen to flee, and thereby commit a crime, the perpetrator has all the more reason to seek to avoid capture."

Doctor Shopping and Unlawful Police Investigation

Ron Chapman — Sat, 13 Aug 2011 18:25:25 -0500

The facts in the case of the State of Florida versus Jeffrey Singming Sun are as follows:

"A deputy arrested Jeffrey Sun's brother for driving under the influence. In the car, the deputy found a notebook. Seeing that the notebook contained information on different pharmacies and dollar amounts, the deputy suspected doctor shopping. This suspicion led him to turn the notebook over to Detective Eric Keith. Detective Keith inspected the notebook and started an investigation that brought him to a CVS pharmacy in Juno Beach. There, Detective Keith sought the brother's prescription history. The pharmacist helpfully pointed out that the brother had a twin, Sun, and gave Detective Keith patient profiles for both men. Visiting several other area pharmacies, Detective Keith obtained Sun's patient profile from each, all without a [search] warrant or a subpoena.

The investigation shifted into its next phase. Detective Keith compared all of Sun's patient profiles to determine whether Sun had gotten the same or similar medications from two or more physicians within a thirty-day period. Sun had. Detective Keith proceeded to contact the three prescribing physicians. He asked each if they had a patient in their care with Sun's name and birth date, and each said yes. When asked, each doctor denied knowing Sun had been seeing other doctors who had been giving him the same or similar prescriptions. They provided written statements to that effect and handed over Sun's signed patient contracts. In his [report], Detective Keith noted '[the doctors] did not disclose the nature of any of Sun's underlying health condition(s) that [necessitated] issuance of the prescriptions.' As with the pharmacy records, Detective Keith had neither a warrant nor a subpoena for these items."

As a result of the detective's investigation, the Office of the State Attorney charged Mr. Sun with trafficking in oxycodone and withholding information from a doctor in order to obtain a prescription for a controlled substance when the person has obtained the same or similar prescription from another doctor within the past 30 days (more commonly known as doctor shopping).

Mr. Sun's case eventually reached Florida's Fourth District Court of Appeal which decided the following four issues:

1. Whether Sun's patient contracts were protected from examination by Detective Keith because of Sun's right to privacy in his medical records;

2. Whether the doctors' statements to Detective Keith about Sun violated the doctor-patient privilege that Sun had with his doctors;

3. Whether the trial judge was correct when he suppressed Sun's patient contracts and the doctors' statements to Detective Keith about Sun; and

4. Whether the trial judge should have suppressed the pharmacy records that the detective obtained without a search warrant or subpoena.

Regarding the first issue, the appellate court ruled that Florida law requires the police to obtain a subpoena after providing notice to a patient before they may seize a patient's medical records. Because Detective Keith did not obtain a subpoena in this case, it was unlawful for him to seize Sun's medical records.

Regarding the second issue, the appellate court likewise ruled that Florida law requires the police to obtain a subpoena before they are allowed to elicit confidential information from a patient's doctor. Because the detective did not obtain such a subpoena in this case, it was unlawful for him to elicit such information from Sun's doctors.

Regarding the third issue, the appellate court ruled that the trial judge was correct to suppress Sun's patient contracts as well as the doctors' statements to Detective Keith about Sun because "suppression is the only remedy to sanction [Detective Keith's] misconduct and deter similar misconduct. . . . Without court intervention and review as mandated by statute, countless innocent patient records are subject to examination and review by well-meaning but misguided law enforcement officials."

Regarding the last issue, the appellate court stated that Florida law does authorize law-enforcement officers to obtain patient pharmacy records without first acquiring a search warrant or subpoena. Therefore, it was lawful for Detective Keith to seize Sun's pharmacy records in this case.

Florida Drug Law Declared Unconstitutional

Ron Chapman — Sun, 07 Aug 2011 16:26:46 -0500

In the case Mackle Vincent Shelton versus the Secretary of the Florida Department of Corrections, United States District Judge Mary Scriven ruled that one of Florida's drug laws is unconstitutional because:

1. It does not require prosecutors to prove that someone accused of violating that law knew that the controlled substance he had in his possession was illegal; and

2. It is a strict-liability crime which does not meet the constitutional requirements necessary for such a crime.

Regarding point number 1, it is generally the case in the United States that someone cannot be convicted of a crime unless he knows that what he was doing was illegal when he did it. However, in 2002 the Florida Legislature passed a law which eliminated the requirement that someone charged with possessing an illegal controlled substance know that the substance in his possession is illegal. Thus, if a college student in Florida were, for example, to put some cocaine into another student's book bag, that other student could be convicted of possessing cocaine even though he did not know that it was cocaine that had been put into his bag.

Regarding point number 2, a strict-liability crime is one for which someone can be convicted even though she is ignorant of the fact that what she is doing is illegal when she is doing it. But in order for a strict-liability crime to be constitutional, it must meet each of the following three requirements:

a. The penalty imposed must be slight;

b. A conviction does not result in substantial social stigma; and

c. Such a law must regulate inherently dangerous conduct.

Regarding point "a," the penalty for violating Florida's drug law is not slight. For example, someone convicted of delivering a controlled substance could be sentenced to up to 15 years in prison.

Regarding point "b," Judge Scriven stated that "[t]he label of 'convicted felon' combined with a proclamation that the defendant is so vile that he must be separated from society for fifteen to thirty years, creates irreparable damage to the defendant's reputation and standing in the community. This social stigma precludes, for example, the ability of a convicted felon to reside in any neighborhood of his choosing or to obtain certain employment."

Regarding point "c," Judge Scriven observed that "there is a long tradition throughout human existence of lawful delivery and transfer of containers that might contain substances under innumerable facts and circumstances: carrying luggage on and off of public transportation; carrying bags in and out of stores and buildings; carrying book bags and purses in schools and places of business and work; transporting boxes via commercial transportation . . . . Under Florida's statute, that conduct is rendered immediately criminal if it turns out that the substance is a controlled substance, without regard to the deliverer's knowledge or intent."

Based upon the ruling in the Shelton case, criminal-defense lawyers throughout Florida are already filing motions asking judges to declare Florida's drug laws unconstitutional.

RICO Does Not Apply to Garden-Variety Criminal Activity

Ron Chapman — Sat, 30 Jul 2011 10:28:29 -0500

In the case of Kevin Jackson versus the State of Florida, Mr. Jackson was convicted of racketeering (more commonly known as RICO), and conspiracy to commit racketeering. The relevant facts of Jackson's case are that:

In 1997 and 1998 the Miami-Dade Police Department began investigating drug sales which were occurring at Riverside Park in the Little Havana area of Miami. As a result of the investigation, 28 people (including Jackson) were charged with RICO and conspiracy to commit RICO as well as numerous other crimes. The prosecutor "acknowledged at trial that Jackson was not a gang member. He presented evidence that two gangs, the 'Latin Kings' and the 'YLO,' operated in the area. This evidence came from a detective with specialized experience with gangs. The detective testified regarding numerous undercover drug purchases made in the park, using undercover officers and confidential informants. These included some of the transactions involving Jackson.

The detective further testified that gang graffiti of both the Latin Kings and the YLO existed in the area, and the graffiti had not been crossed out. He offered his opinion that this meant the two gangs were engaged in a cooperative enterprise to control the drug trade at the park. He explained that in his experience, in the absence of some agreement, rival gangs would cross out each others' graffiti. There was no other testimony that the two gangs had formed a de facto association or joint venture to control the drug trade in the park."

Jackson appealed his convictions to Florida's Third District Court of Appeal which reversed Jackson's convictions for RICO and conspiracy to commit RICO for the following reasons:

1. According to Florida's RICO law, “[i]t is unlawful for any person employed by, or associated with, any enterprise to conduct or participate, directly or indirectly, in such enterprise through a pattern of racketeering activity.” An enterprise includes a criminal street gang as well as a "group of individuals associated in fact although not a legal entity." In Jackson's case, the detective's testimony regarding gang graffiti was not enough by itself to establish the existence of an association or joint venture between the two gangs to control the drug trade in the park.

2. No evidence was presented at Jackson's trial that tended to prove he was a member of either the Latin Kings or YLO.

3. No evidence was presented that proved he engaged in transactions with gang members or on behalf of gang members.

4. No evidence was presented that tended to prove he shared any of the money he earned from selling drugs with either gang.

5. The evidence showed only that Jackson sold cocaine in the park and that he was familiar with some other persons who were gang members. Such evidence, however, was not sufficient to convict him of either RICO or conspiracy to commit RICO.

6. The concept of a RICO enterprise should not be applied to garden-variety criminal undertakings, and the evidence in Jackson's case proved nothing more than just that.

RICO Requires a Pattern of Racketeering Activity

Ron Chapman — Wed, 27 Jul 2011 15:11:07 -0500

The Racketeer Influenced and Corrupt Organizations Act, more commonly referred to as RICO, is a federal law that provides for criminal penalties for acts performed as part of an ongoing criminal organization.

Florida has its own RICO law which requires that one have engaged "in at least two incidents of racketeering conduct that have the same or similar intents, results, accomplices, victims, or methods of commission or that otherwise are interrelated by distinguishing characteristics and are not isolated incidents, provided at least one of such incidents occurred after the effective date of this act and that the last of such incidents occurred within 5 years after a prior incident of racketeering conduct."

In the case of the State of Florida versus Joseph Russo, Mr. Russo and others were charged with breaking Florida's RICO law by, among other things, committing the crime of trafficking in marijuana and conspiracy to traffic in marijuana. In his defense, Russo argued that trafficking in cannabis and conspiring to do so actually constitutes only one incident of racketeering conduct, not two incidents which is what Florida's version of the RICO law requires.

In response, the prosecutor argued that acts which are part of the same transaction can still qualify as distinct incidents of racketeering conduct if each incident requires proof of an element that the other does not. Thus, in Russo's case, trafficking in cannabis and conspiring to traffic in cannabis are two distinct incidents of racketeering conduct because each requires proof of an element that the other does not.

Fortunately for Mr. Russo, Florida's Fourth District Court of Appeal sided with him saying that Florida's RICO law requires two distinct incidents of racketeering activity rather than two acts which are part of the same transaction. The Court of Appeal believed that this interpretation made it more likely that career criminals would be targeted by the RICO law rather than someone who was not a career criminal but who nevertheless happened to have committed two criminal acts in connection with the same transaction.

Court Orders New Trial After the Jury Was Improperly Shown Pornographic Pictures From a Computer Hard Drive

Ron Chapman — Sat, 02 Jul 2011 16:48:47 -0500

In the case of Joe Bryant versus the State of Florida, a jury convicted Mr. Bryant of the crimes of battery, handling or fondling a child under sixteen in a lewd, lascivious, or indecent manner, and showing obscene material to a minor. The facts of Bryant's case are as follows:

"The fourteen-year-old victim testified that Bryant exposed her to obscene pictures on a computer, touched her inappropriately, and committed sexual battery by digital penetration. This allegedly occurred on the first night of a two-night sleep over with Bryant's daughter at Bryant's home. The [prosecutor] also presented as evidence obscene photographs, recovered from the hard drive of a computer at Bryant's home, that had been generated the night of the sleep over. Although admittedly obscene, the images did not match the description of the pictures the victim described seeing. Also present at Bryant's home on the night in question were Bryant's eleven-year-old son, fourteen-year-old daughter and twenty-two-year-old daughter. They all testified at trial and denied observing any of the conduct leading to the charges.

After [Bryant finished presenting his evidence], the [prosecutor] offered into evidence twenty-four additional photographs that had been recovered from the computer hard drive. The [prosecutor's] computer expert revealed that these additional images were placed on the hard drive over a three-month period of time ending some two weeks to a month before the night of Bryant's alleged criminal activity in this case. [Bryant] objected to the admission of these additional images."

Bryant appealed his convictions, and the appellate court deciding his case ruled that he should receive a new trial because the prosecutor should not have been allowed to show the jury the twenty-four additional photographs that had been recovered from the computer hard drive. The appellate court based its decision on the following three factors:

1. The prosecutor presented no direct evidence that the twenty-four photographs were placed onto the hard drive by Bryant even though, of all the people having access to that computer, Bryant was the one most likely to have viewed them.

2. Compared to the pictures shown to the jury during the first portion of the trial, the twenty-four additional photos revealed a distinct difference in subject matter. More specifically, except for one pornographic cartoon, the first set of pictures showed undressed adolescent and pre-adolescent girls; however, the twenty-four additional photographs contained several images of sexual activity.

3. The prejudicial impact of the twenty-four additional photos far outweighed any value they may have had in proving that Bryant was guilty of the crimes he was charged with committing.

Double Jeopardy and the Crimes of Theft and Dealing in Stolen Property

Ron Chapman — Fri, 24 Jun 2011 10:12:05 -0500

Florida law states that "a single indictment or information may, under proper circumstances, charge theft and dealing in stolen property in connection with one scheme or course of conduct in separate counts that may be consolidated for trial, but the trier of fact may return a guilty verdict on one or the other, but not both, of the counts."

In the case of Theron Toson versus the State of Florida, the issue was whether Mr. Toson could be found guilty of both grand theft and dealing in the property that was stolen in the grand theft case. Toson argued that his conviction for both crimes violated the constitutional prohibition against double jeopardy and the Florida law quoted above.

Florida's Fourth District Court of Appeal agreed with Toson stating:

"In [this] case, the information, the [police report], and the factual basis presented, established that the grand theft and three charges of dealing in stolen property to which Toson was making his open pleas, all involved the same property stolen in the course of a burglary of Patricia Gillette's home. Toson testified at the plea hearing, without contradiction, that he sold the stolen items in order to support his crack cocaine addiction.

This court, in [the case of Blair versus the State of Florida], addressed a similar fact situation. In Blair, the information charged the defendant with stealing jewelry on one date and dealing in the same jewelry on the same date or sometime thereafter. The [State Attorney] was unable to prove the theft of the jewelry and the dealing of the same jewelry were distinct and unrelated criminal incidents. Our court stated as follows:

'While we recognize that additional acts will always be required to dispose of the property in question, the legislative purpose of the [law quoted above] is to prevent dual convictions in connection with one scheme or course of conduct. Absent something more to purposefully interrupt the two crimes by an unquestionably disjunctive period of time or series of events, defendant's conviction for one of the offenses must be set aside' "(italics added).

What Evidence Is Needed to Convict Someone of Aggravated Fleeing or Attempting to Elude a Police Officer?

Ron Chapman — Sun, 19 Jun 2011 17:58:09 -0500

In the case of Casey Steil versus the State of Florida, Mr. Steil was convicted of the crime of aggravated fleeing or attempting to elude a police officer based on the following facts:

"At around 4:00 a.m., three officers in a restaurant went outside after hearing there was going to be a fight in the parking lot. One of the officers held out his hand and yelled 'stop' to [Steil], who made eye contact with the officer, but did not stop his vehicle as he was leaving the parking lot. The officer testified that he was attempting to stop [Steil] in order to determine if he had been involved in the reported disturbance. He had no reason to believe [Steil] may have been involved in a crime.

The officer testified that [Steil] squealed his tires as the car left the parking lot at about fifteen to twenty miles an hour. Another officer in a car followed [Steil], but did not get closer than within a block, and as that officer turned on his siren and blue lights, [Steil] was a block away turning onto another street. When the officer turned onto that street, he turned off his siren. Then, after observing [Steil] run two stop signs, the officer also turned off his blue lights and took a parallel road, thinking [Steil] would come back to U.S. 1. The officer estimated that he was driving fifteen to twenty miles an hour over the thirty-five mile an hour speed limit and [Steil] was driving a little faster. He then again encountered [Steil], saw him run a stop sign with a red flashing light, and [Steil] then stopped at a red light. At that point, the officer activated his blue lights and [Steil] pulled over. The officer testified that he had arrested [Steil] for reckless driving, but he had not actually clocked [Steil's] speed. Nor did he observe any other vehicles affected by [Steil's] driving."

Steil appealed his conviction to Florida's Fourth District Court of Appeal where he argued that while the fleeing or eluding statute prohibits driving at a "high speed, or in any manner which demonstrates a wanton disregard for the safety of persons or property," no evidence was presented at his trial that he had done either of those things.

The appellate court agreed with Steil for the following reasons:

1. Aggravated fleeing requires that the pursuing officer has his lights and sirens on.

2. In this case, the officer testified that he did not have them on during most of the pursuit.

3. There was insufficient evidence of high speed or wanton disregard for the safety of persons or property, while the officer's lights and siren were on, to support Steil's conviction for aggravated fleeing.

What Has to Be Proved Before a Domestic Violence Injunction Can Be Issued Against You?

Ron Chapman — Sun, 12 Jun 2011 16:51:04 -0500

In the case of Kopelovich versus Kopelovich, a domestic violence injunction was issued against Mr. Kopelovich based on the following facts:

Mrs. Kopelovich filed a form petition that asked her to describe the latest act or threat of violence that caused her to honestly fear imminent domestic violence by Mr. Kopelovich. She responded that he had:

1. Threatened to harm her dog;

2. Threatened to harm her in court and destroy her financially; and

3. Emotionally abused her by brainwashing her, lying to her, and embarrassing her in front of her family.

Based upon these accusations, a judge issued a temporary injunction against Mr. Kopelovich. However, Mr. Kopelovich appealed that decision to Florida's Second District Court of Appeal which ruled that this injunction should not have been entered because Mrs. Kopelovich's petition failed to establish:

1. Immediate or present danger;

2. The threat of domestic violence; or

3. Actual domestic violence.

RICO Indictments and the Importance of Distinguishing Between a "Person" and an "Enterprise"

Ron Chapman — Sat, 04 Jun 2011 21:47:47 -0500

In the case of United States of America versus Goldin Industries, Inc., the Eleventh Circuit Court of Appeals reversed a RICO conviction because the indictment failed to distinguish between a "person" and an "enterprise."

An article that I posted on my website, Federal Criminal Lawyer: Frequently Asked Questions, examines this case and why the appellate court thought it so important to make this distinction.