Roadside Searches are Suspect for Fort Lauderdale Defense Attorneys

There is a certain amount of privacy that we as a society and individuals agree to give up when we get in a motor vehicle and drive on public roadways.

For example, Florida statute has an implied consent law that indicates if a DUI suspect is stopped with reasonable suspicion and refuses to submit to a breathalyzer test to determine his or her blood-alcohol level, he or she will face an automatic one-year license suspension.

Our Fort Lauderdale criminal defense lawyers also know that the courts have ruled that our motor vehicles, in general, are not entitled to the same level of privacy as our homes or persons. An officer with probable cause to believe contraband is located within can search a motor vehicle without a warrant.

However, this does not give officers free reign – though you wouldn’t be able to tell based on recent videos that have surfaced out of Texas.

Two dash camera videos taken from two separate highway patrol cruisers in different areas of the state contain disturbing footage. In both cases, a female driver and a female passenger are stopped for minor offenses (one for allegedly littering a cigarette butt and the other for speeding) and subsequently both subjected to full cavity searches – on the side of the road – to look for drugs.

The videos are rightfully sparking outrage among the public, and civil lawsuits have been filed. One case was recently settled for $185,000.

One trooper was fired and investigated for alleged sexual assault, though a grand jury refused to indict her and she was recently reinstated to her post.

The director of the Texas Department of Public Safety noted that in that incident, a more senior trooper instructed a relatively inexperienced trooper to conduct an “inappropriate” search.

In both instances, the troopers reportedly used the same pair of gloves to search both women.

Aside from the fact that these full cavity searches were humiliatingly conducted in full view of passing traffic and that they would have been illegal even if officers had strong suspicion that these women possessed drugs, there was no indication whatsoever that either victim was under the influence of drugs. Yet the video shows deputies pressing over and over again for the location of the drugs.

In the end, no drugs were found, either in the vehicle or in the women searched. There had never been any reasonable suspicion or probable cause to suspect the women possessed illegal narcotics.

Florida Statute 901.211 holds that no person arrested for a traffic, regulatory or misdemeanor offense may be strip searched unless:
–There is probable cause to believe that the individual is concealing a weapon, controlled substance or stolen property;
–A judge at a first appearance has found that the person can’t be released either on their own recognizance or bond and must be sent to county jail.

Even when strip searches are conducted, they are to be done by an officer and observer of the same gender, in sanitary conditions and with the express, written approval of an on-duty supervisor.

You do still have the right to decline any search, and you should make your desire to refuse a search very clear. That doesn’t necessarily mean that an officer won’t conduct one. However, the officers won’t be able to later say in court that the search was voluntary, and therefore they didn’t need probable cause. It could end up significantly helping you later in court.

Searches that are conducted without following strict legal protocol will result in any evidence found thereafter being unusable in court.

Coverup of Criminal Investigation Source Could be Problematic for Prosecution

In any criminal case, the way that evidence was found and collected is often just as important – and sometimes even more important – than the evidence itself.

So if our Broward criminal defense attorneys can prove that evidence was improperly gathered, the evidence won’t matter because we will work to have it suppressed so that it won’t be considered by the court.

However, in order for us to do our job in this regard, law enforcement officials and prosecutors must be forthcoming. The law requires them to do this in the discovery phase of the case. They are forbidden by law from withholding any information that could be beneficial to your case – and that includes information about evidence collection.

This is what makes the revelations of what has been happening with the U.S. Drug Enforcement Administration all the more disturbing. A recent investigation by news outlet Reuters revealed that federal DEA officials took information received from the National Security Administration’s intelligence intercepts, wiretaps, phone record databases and informants, and distributed it to local law enforcement. This information is supposedly gathered for the purposes of protecting our national security Yet, it is being given to the DEA, which is then using it to further domestic criminal investigations.

What’s more, the DEA has reportedly been giving pieces of this information to lower-level law enforcement agencies to help further their criminal drug investigations. What’s more, the DEA has been directing these lower-level law enforcement agencies to “recreate” an investigative trail, such that the defense lawyers and sometimes even the prosecutors will be kept in the dark about the origins of the evidence.

This is a major, major concern in terms of constitutional rights. The reason is because if a defense lawyer is not aware of how an investigation started, he or she does not know to ask for a review of potential sources of exculpatory evidence. Exculpatory evidence would be evidence that might be favorable to the defendant. This might include evidence of certain biases or entrapment or some other element that could help a defendant in court.

Nancy Gertner, a Harvard Law School professor who served as a federal judge from 1994 to 2011, offered reporters her view on the matter: “It’s one thing to create special rules for national security. Ordinary crime is entirely different. It sounds like they are phonying up investigations.”

The entire situation is happening under the umbrella of a unit of the DEA called the Special Operations Division. It has roughly two dozen partner agencies, which include the NSA, the Internal Revenue Service, the Department of Homeland Security, the CIA and the FBI. Originally, this unit was formed back in the mid-1990s to curb the proliferation of Latin American drug cartels.

Today, we don’t know the exact nature of the operations, because the agency is highly secretive. The only reason Reuters knows about the cover-up directives is because internal memos were leaked to reporters.

Former law enforcement officials who spoke anonymously to reporters, indicated it would often work like this:

Someone from the SOD would contact a local law enforcement agency, tell them to be at a certain location at a certain time and look for a certain vehicle. From there, officials would find some reason to stop that vehicle, search it and locate contraband. However, the tip from the SOD was top secret. No mention of it is ever made in any law enforcement documentation. There is evidence that even prosecutors were often unaware of it.

By hiding the origins of a case, law enforcement officials are able to get around established court procedures by which judges privately examine potentially sensitive information. This might include an informant’s identity, for example. It also takes away the judge’s discretion to determine whether the information is relevant to the defense.

And again, we’re talking about information supposedly collected for purposes of national security being used to prosecute those accused of drug-related crimes. That alone is likely a blatant violation of a defendant’s Fourth Amendment rights to be free of unlawful and unwarranted search and seizure.

Drug Sentencing Policy Shift Announced by Federal Authorities

Officials with the U.S. Justice Department have announced a major shift in the overall approach to drug crime sentencing, instructing prosecutors to omit quantity lists for illegal substances for lower-level drug cases.

This in effect will allow defendants to avoid being subjected to strict federal minimum mandatory sentences for those drug-related offenses.

This sounds like sweeping reform.

However, our Fort Lauderdale drug crime defense lawyers understand that, for now anyway, this is really only applicable for cases that are being handled at the federal level. The reality is that the federal government handles a relatively small number of drug offenses, and an even smaller number of low-level drug offenses. The majority of those cases are handled at the state level.

There are about 2 million people behind bars in this country as we speak. Of those, only about 10 percent are in the federal system. And of those, about a quarter, or 90,000 are imprisoned for drug-related offenses.

The reality is that low-level drug offenses – for example, marijuana busts involving fewer than 100 plants or possession arrests for smaller amounts of crack cocaine – aren’t typically handled at the federal level.

Of course, we are encouraged by U.S. Attorney General Eric Holder’s about-face. Indeed, it’s rare to hear an attorney general talk about the urgency with which we need to address prison overcrowding and the clear and overwhelming racial disparity regarding the prosecution of these drug cases.

But when it comes to state-level drug offenses, which is what you are more likely to be accused of, this change probably won’t have much of an impact. In fact, in Holder’s introduction of reformed policies, he indicates that more drug cases should be handled at the state level anyway.

Still, Holder did say that widespread incarceration at the federal, state and local levels is ineffective and also unsustainable. The U.S. holds 5 percent of the world’s population, and yet is responsible for nearly one quarter of the world’s prisoners. This costs taxpayers about $80 billion each year.

Holder also pointed out that black male offenders tend to receive sentences that are 20 percent longer than those imposed on white offenders. He said that non-violent offenders take up the majority of our federal prisons, and that we have reached a critical capacity.

Holder urged federal prosecutors to use more discretion with regard to how certain drug offenders are charged, so as to avoid triggering a minimum mandatory sentence for a non-violent drug offender who is not a major player in the trafficking game. These are offenders who typically have no ties to drug gangs, cartels or international traffickers.

Perhaps the biggest change we will see immediately is that more of these cases will go to trial. Without strict minimum mandatory sentencing, prosecutors will no longer have the same muscle to strong-arm plea deals out of defendants.

Holder said prosecutors should instead focus on reform and drug treatment.

There has also recently been legislation introduced in the U.S. Senate that could give federal judges a wider degree of discretion with regard to sentencing for even high-level drug offenders.

South Florida Child Neglect Charges “Exaggerated,” Mom Says

By the description of Rivera Beach police officers, the home where a 12-year-old boy resided with his mother was a “house of horrors.”

At least that’s what can be gleaned from a local news report. However, our Broward felony defense lawyers understand that description may be highly overstated. The mother in question is facing charges of child neglect, and claims those allegations are “exaggerated.”

So where do we delineate between a home that is messy and one that has crossed the line into neglect? The question has been raised more frequently as reality television shows like “Hoarders” have brought the issue to the forefront.

The answer is not clear-cut and may greatly depend on who answers the call.

Florida Statute 827.03 defines neglect as a caregiver’s failure or omission to provide a child with care, supervision and services necessary to maintain that child’s physical and mental health and well-being. This includes, but is not limited to, assurance of proper food and nutrition, clothing, medicine and medical services, supervision and shelter. The standard of determining what that actually means is whether such conditions would be considered essential by a “prudent person.”

In other words, the determination is highly subjective.

In this case, authorities were reportedly called to the residence by the boy who had hurt his knee and called 911. When officials arrived, they allegedly found “deplorable” conditions in the home. There was an “extreme foul odor” of both feces and urine throughout the home, with clothing, bedding and floors covered with dog feces. Certain bedrooms were deemed “impassable” due to garbage, clothing, bugs, food, and feces that covered the floor. The plumbing in one of the bathrooms was not functional. Urine covered the floor. There was a minimal amount of food in the home, and the home was cooled only by a small air conditioning unit that proved insufficient, making the place “unbearably hot.”

The police detective called the conditions “unsafe for any child or adult.”

The boy was initially seized by workers with the state Department of Children and Families, and the mother was arrested and charged with felony child neglect.

However, the boy was returned back to his mother – in that same home – that very night.

To hear the mother tell it, the story is quite different. The family just got a new dog, hence the dog messes scattered throughout the home. With regard to the air conditioning and plumbing, she said she’d been after the landlord for weeks to fix those problems, but he had been unresponsive.

She agreed there was little food in the home, but said that was because her food stamps had recently been discontinued and she didn’t get paid for another several days.

She denied that the home was covered with bugs and garbage and said that after a half an hour of cleaning, the home was deemed fit for the child to be returned.

She insisted she was innocent and her children were treated with “dignity and respect.”

Neglect of a child without great harm is considered a third-degree felony, punishable by up to five years in prison. Even if a defendant doesn’t receive that much time, such a conviction could undoubtedly alter child custody or visitation arrangements.

Anyone facing such a charge should seek immediate counsel from an experienced criminal defense lawyer.

Stand Your Ground Applicable in Variety of Cases

The Trayvon Martin-George Zimmerman trial not only inflamed racial controversy, it sparked a national discussion about whether laws such as Florida’s “Stand Your Ground” are just.

Our Broward felony defense attorneys know that even President Barack Obama has weighed in on the matter, suggesting that states review their laws. Sen. John McCain, R-Ariz., has said that such a review would be appropriate for his state and the governor recently backed that call.

Similar laws exist in a number of states, including Alabama, Louisiana, Mississippi, Michigan, Tennessee, Texas, South Carolina, Ohio and California.

However, as it turns out, Florida’s Stand Your Ground law, under Florida Statute 776.013, may be applicable to a wider range of cases – not just in murder trials.

The most recent example of this was a ruling made recently by the 4th District Court of Appeal. The decision was that a middle school student who got into a fistfight with a girl on a Broward County school bus should have been allowed to use the Stand Your Ground defense in order to defend himself and his actions.

The appellate panel further chastised the circuit court judge presiding over the case for denying the boy the opportunity to use the defense while challenging a charge of battery pending against him.

Ultimately, the boy was convicted and subsequently sentenced as a juvenile.

The lower court judge had initially ruled that the Stand Your Ground defense wouldn’t apply in this case because the young teen wasn’t defending his home or his vehicle.

However, the appellate court judge said the law would still be applicable because the boy had every right to be on that school bus. Therefore, he had no duty to retreat when he felt threatened.

As such, the appellate court overturned the boy’s conviction and said the circuit court judge should consider that the teen was acting within his rights under the Stand Your Ground law.

We don’t know a whole lot about the original incident, as it was a juvenile case and those are handled much differently than adult cases in terms of public access. What we do know from appellate court records was that the boy and girl were on the same school bus, heading home for the day, when a fight erupted. The school bus driver indicated that the girl had grabbed a hold of the boy’s jacket and punched him before pulling him back down on the seat. At this point, the boy began to fight back.

The girl’s testimony, however, was that the boy attacked her unprovoked.

The appellate court’s ruling didn’t address whether it believed any singular version of events. The issue is whether, if the boy’s version is believed, he had a right to meet force with force on that school bus.

Appellate court judges said he did. However, the question of whether that force was justified under the argument, or whether it was necessary to prevent death or bodily harm, is a factual question that must be answered by the lower court. In other words, the lower court has to decide who started the fight and if it was the girl, whether the boy responded in a way that was within his rights under the law.

Fort Lauderdale Criminal Defense Lawyer

Florida Criminal Lawyers

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