Recent Updates
April 28, 2010
State Must Prove Defendant's Knowledge of Driver's License Suspension
April 13, 2010
Sentencing Commission Votes to Eliminate Recent Criminal History Points
October 15, 2009
Consent to search inside of vehicle does not extend to locked containers
October 14, 2009
Making phone calls to get drugs for personal use not a felony
October 07, 2009
Duval County schools agree to reduce number of students getting arrested
Criminal
Major change in understanding of Supreme Court stance on searches incident to arrest
July 31, 2009
The Supreme Court in the case of Arizona v. Gant, 129 S Ct 1710 changed nearly three decades of law where police were allowed to search the inside of a car after an arrest was made for a traffic offense. After Gant, police may now search the passenger compartment of a vehicle incident to a recent occupant's arrest only if it is reasonable to believe that the arrestee might access the vehicle at the time of the search that the vehicle contains evidence of the offense of arrest
In Gant, the defendant was arrested for driving on a suspended license, handcuffed, and placed into a patrol car before officers searched his car and found cocaine in a jacket pocket. The Arizona trial court denied his motion to suppress the evidence, and he was convicted of drug offenses. Reversing, the State Supreme Court of Arizona reversed years of interpreting the seminal case of New York v. Belton, to allow searches wether the defendant still had access to the potential contraband, even though the defendant was now secured and away from the compartment. The Arizona Supreme Court also took the step to distinguish Chimel v. California, which allowed a search incident to arrest if officer safety or the interest in preserving evidence.
It is easy to say that 90 percent of search law cases have to do with searches incident to traffic stops.
At issue is protections given by the Fourth Amendment, which protects citizens "against unreasonable searches and seizures." U.S. Const. amend. IV. The attorneys for the state of Arizona argued that the expansive reading of Belton that had been adopted by court balances law enforcement interests with an arrestee's "limited privacy interest in his vehicle."
Gant's attorneys countered that NAFD also argues that officers are fully able to protect the integrity of evidence and their own safety without conducting an otherwise unnecessary search. See Brief of NAFD at 18-21. For instance, officers who secure a vehicle as part of a crime scene can protect evidence by controlling access to the vehicle. See id. at 19. The Court sided with Gant, stating that Arizona's reading "seriously undervalues the privacy interests at stake, and it exaggerates both the clarity provided by a broad reading of Belton and its importance to law enforcement interests. The Court also stated that Belton, as well as the Court's decisions in Thornton v. United States, Michigan v. Long and United States v. Ross permit an officer to search a vehicle when safety or evidentiary concerns demand.
Although officer's may arguably be able to get much of the same evidence through post-arrest inventory searches, this is one of the few Fourth Amendment victories for defendants in Fourth Amendment issues before the Supreme Court in many years.
Article published by Findlaw
July 30, 2009
An article written recently by Mr. Arnold was published by Findlaw. The link to that article can be found at
http://knowledgebase.findlaw.com/kb/2009/Jul/32680.html.
Mr. Arnold admitted to the Georgia Bar
July 20, 2009
Partner Shawn Arnold was recently admitted to the Georgia Bar. Mr. Arnold, a Board Certified Criminal Trial Attorney, will be accepting cases in state and federal court throughout Georgia, in addition to his continuing state and federal practice in Florida.
Another thing to suspend your driver's license
July 14, 2009
For many defendants, accepting a plea agreement or entering a plea in court can be very beneficial compared to going to trial. However, it is important that the defendant be fully apprised of the consequences of entering a plea, especially if the defendant will be adjudicated guilty. Having a defense attorney that is experienced in criminal defense, has practiced in the jurisdiction, and is very familiar with the statutes is imperative.
For example, a little-known consequence of being adjudicated guilty for petty theft is the suspension of the defendant's driver's license. According to Fla. Stat. § 812.0155, a court may order the suspension of the driver's license of each person adjudicated guilty of any misdemeanor violation of § 812.014 or § 812. 015, regardless of the value of the property stolen. If the defendant has been previously convicted of such an offense, the court must order the suspension. Once that order is made, the court will forward it to the Department of Motor Vehicles for further action on the suspension. The first suspension can be for up to six months. A second suspension must last one year.
Understanding the need there be stiff penalties for some crimes, suspension of driver's license for theft or drug related crimes makes little sense. If you want to take someone's license for driving away from a gas pump and not paying for the gas, that makes sense. There is an easy to connect result from the illegal action and the punishment. However, the relationship between an 18 year old having marijunana and taking their driver's license for two years is absurd. If the legislature wants to provide a good mass transit system, they would have more authority to take a person's license.
Police Encounters
July 13, 2009
A great majority of our cases begin with a citizen encounter with a police officer. Knowledge of this area of the law is critical to assess whether a client has a claim to suppress evidence or statements gathered from the client. Suppression of evidence and statements is how most cases are resolved in our client's favor.
The Fourth Amendment of the Constitution protects people and their property from unreasonable police intrusion. This means, that the government must have a legal justification before they can search or seize a person or their property. Under certain circumstances, a violation of these protections can result in the suppression of evidence, dropped charges, and release from jail.
According to the Florida Supreme Court, there are three levels of police-citizen encounters. The first level is a consensual encounter involving only minimal police contact. This would be like an officer seeing you on the street and walking over to talk to you. During this type of encounter, a person can talk to the officer or completely ignore him. And, because they are free to leave, the Fourth Amendment protections are not invoked. However, while this type of encounter is not protected, that can easily change if the officer's conduct or statements would make a reasonable person feel that they were not free to leave.
The second level of police-citizen encounters involves a Terry stop. This means that if a police officer has a reasonable suspicion that a person has committed, is committing, or is about to commit a crime, he or she may "reasonably detain" a citizen temporarily. This type of stop is restricted by the Fourth Amendment and requires a well-founded, articulable suspicion of criminal activity. Mere suspicion is not enough.
The third level of police-citizen encounters involves an arrest, which must be supported by probable cause that a crime has been or is being committed.
This case is an important tool in the toolbox of the experienced defense attorney, who can use it to suppress evidence and even get charges dropped. For example, a defense attorney who understands the different types of encounters can argue that a consensual encounter was transformed into a seizure when a police officer placed his hand on his weapon and ordered his client to stop. He would argue that, because the officer "seized" his client, the Fourth Amendment was invoked and the officer needed a legal justification. If the officer did not have a justification, reasonable suspicion in this case, then any evidence obtained as a result of the stop would be inadmissible. Therefore, if the client was carrying a weapon or contraband and the officer found it, this evidence could not be used in court.
Drug offender's sentence cut due to typo
July 10, 2009
Calvin Wells, a repeat drug offender, was convicted of possessing more than 100 grams of crack cocaine and sentenced to ten years in prison. While serving his sentence, Wells reviewed the records of the case and found a typo on the verdict form:
"We, the Jury, find the Defendant Guilty of the offense of POSSESSION OF CRACK COCAINE.
We, the jury, further find that the amount of crack cocaine WAS in the amount exceeding ten one hundred (100) grams as charged in the indictment."
In Ohio, in order to convict a person of a higher felony, the jury must indicate the circumstances that make it a higher felony on the verdict form. In Wells' case the typo made the form unclear.
After contacting several attorneys who refused to help him, Wells finally retained an appellate attorney to handle his case. The Ohio Court of Appeals determined that the extra word in the verdict form made the jury's findings ambiguous. They could have been convicting Wells of possession of more than 100 grams or less than 1 gram. Under the circumstances, the three-judge panel could not accept the possibility that Wells was serving a ten-year sentence after having only been convicted of a fifth-degree felony, which carries a maximum sentence of 1 year.
Wells had already served four years of his sentence and would have been released. However, he was wanted in another jurisdiction. The state of New Jersey is now seeking extradition.
Escape May not Qualify under Armed Career Criminal Act
July 09, 2009
The Armed Career Criminal Act (ACCA) provides that a defendant sentenced for a violation of §922(g), who has three or more prior convictions for violent felonies or serious drug crimes committed on occasions different from one another, faces a mandatory minimum prison sentence of fifteen years. In this case, United States v. Canty, 2009 WL 1616673 (11th Cir.), the Defendant had several prior convictions for escape, obstructing or opposing an officer with violence, possession with intent to sell cocaine, and carrying a concealed firearm. At his sentencing, the Defendant objected to an ACCA enhancement based on the concealed firearm conviction. The trial judge, believing that 11th Circuit precedent allowed him to consider the conviction, overruled the Defendant's objection.
On appeal, the court determined that the lower court improperly interpreted precedent. The definition of "crime of violence" in the ACCA is very similar to the definition in the Sentencing Guidelines, and carrying a concealed firearm is not a crime that should be considered. The Government then alleged that the Defendant's other convictions still qualified him for the enhancement. The Defendant responded to this argument claiming that escape is not a violent crime and that it was not committed on an occasion different from the obstruction charge.
The Court of Appeals did not reach the issue of whether the escape and obstruction crimes were "crimes of violence" because it held that there was not enough information in the record to indicating that they were committed on different occasions. From the record, the court determined that the crimes were committed on the same day and were listed on the same judgment. The Government urged the court to review the PSR, which described how the crimes were committed and supported the Government's position. However, the information it contained was based on arrest records and police reports, which the Defendant claimed were improper under Shepard. The Government opposed this position, however, the court found that the Government had waived any argument on the matter and held that the ACCA enhancement could not be applied to this Defendant.
Our firm is currently handling a case involving a similiar issue with a client who is labeled as an Armed Career Criminal. It is critical to get a client out from such a designation because the guidelines are often much less than the 15 year minimum mandatory, and therefore it can make a significant difference in the final sentence of the client.
Charges Dropped against Jacksonville Business Man
July 08, 2009
Today, the State dropped charges against a client whom was accussed of taking in excess of $300,000 from a former business partner. This long matter was finally brought to a close. The events happened in 2003, the alleged victim filed a civil lawsuit in 2004 and the client was incredibly arrested for this business dispute in 2007.
Budget cuts Hurt both the State and Public Defenders
July 08, 2009
Mr. Arnold recently hosted a seminar in which he gave an update on recent case law in Florida. He also moderated a panel which included State Attorney Angela Corey and Matt Shirk, Public Defender from the Fourth Judicial Circuit, as well as Judge Michael R. Weatherby and First District Court of Appeals Judge Charles Kahn.
