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Editor: Tampa Criminal Attorneys
Profession: Tampa Defense Attorneys

If Possible File That Motion in Limine Long Before Trial

Category: Criminal Law

As a criminal trial lawyer you learn very quickly that certain pretrial rulings from the Court can have a dramatic impact on a jury's ultimate decision. As a public defender I was forced because of time constraints (over burdened with files) to file motions-in-limine (this is a motion directed at preventing the state attorney from introducing or mentioning evidence, which you believe, is inadmissible at trial) shortly before trial. I hated it. A ruling from the court on pivotal evidentiary issues long before trial is imperative to making an informed decision about taking the case to trial or not. Certainly there are evidentiary issues that can arise in such a way that force you to make this motion last minute. There may also be strategic reasons for waiting to file a motion-in-limine shortly before trial. However, filing these motions early on in the litigation can be very beneficial to the lawyer and his/her client.

I was on the phone recently with a much respected, well-known criminal attorney who had been practicing for a long time. His client wanted a second opinion about his case and he encouraged him to talk to me. The issue arose as to whether a crime he pled guilty to previously would be admissible at the trial on his new charge. This particular case involved sexual allegations, and the sanctions he would receive at sentencing were severe if he went to trial and lost. I suggested filing the Motion in limine and have the judge decide the issue as soon as possible. When a jury hears evidence of prior bad acts or crimes, a defendant's case can go from very winnable to "maybe the State's offer isn't so bad after all". The client's lawyer told me, "I usually file those types of motions right before trial". I don't mean to second guess another lawyer. In his defense, he had been dealing with the case much longer than I had, and maybe had other reasons for waiting to file the motion. My only point is that deciding an issue so pivotal to the outcome long before trial could save the defense attorney from meetings with the client speculating about whether the judge will allow the evidence in right before trial. It also helps the defense attorney in that he knows what he or she is up against long before he starts the jury selection. It makes the judge happy in that a major decision (that involves a lot of argument by the lawyers, and consideration on her part) is decided long before trial. Nothing upsets a judge more than being forced to make a decision "on the fly" that could result in an appeal one way or the other. After practicing law for over 15 years I can tell you that even the most state-oriented judge is a hell of a lot more interested in being right on the law than being reversed. Having this hearing long before the trial gives the judge an opportunity to give the motion all of his/her consideration without having to be concerned about how much longer the jury panel is going to be waiting outside while he/she decides the motion. This may seem like obvious logic to many but filing these motions on the eve of trial is more the norm than the exception. To find out more link to Tampa Criminal Attorney or call us at 813-228-7095.

Tampa Felon in Possession of Firearm Gets Fair Shake From Jury Despite Overwhelming Evidence

Category: Recent Wins

My client was arrested for Felon in Possession of a Firearm in Tampa. Under normal circumstances this offense doesn't look too ugly. Yes, it's a level 5 second degree felony, and the maximum sentence you could receive is 15 years in Florida State Prison, but it only scores probation without a prior record or any aggravating factors. This case involved some aggravating factors that prompted the State Attorney to charge my client with Felon in actual possession of a firearm. The "actual" possession obviously means that the State has evidence that will prove that the firearm was at some point not just in the felon's vehicle or in his house, but on his person. The "actual" possession is a characteristic that carries a 3 year minimum/mandatory sentence in Florida State Prison.

FACTS: The client was cruising Ybor City at about 3 a.m. on a Saturday night. Many kids are exiting the clubs at this hour because of a city ordinance. Ybor City has a reputation for crime, and especially at this hour. As a consequence, the City of Tampa stations a number of police officers in the parking lots outside these clubs to keep order. My client was driving westbound near the parking lot outside Club Empire. His passenger had an altercation with a passer-by that caused him to exit his vehicle. According to the police report the defendant (my client) exited the driver's side of his vehicle and pulled out a Tech-9 from his trunk. A tech-9 is a light weight uzi-type firearm that can be easily modified to fire automatically. It can also hold a large clip of ammunition. The police report states that an anonymous bystander told the police that the driver "just pointed an uzi at us".

Upon hearing this information from the bystander seven or eight police officers chased the vehicle on foot through the parking lot behind the Tropicana Restaurant. My client, believing the group of people from the first encounter was still chasing him, moved quickly through the parking lot avoiding a number of other drivers. The main investigating TPD officer made a number of representations in his police report about the chase. He claimed that our client stopped his vehicle in the parking lot. According to the investigating officer, he ran up to the vehicle which was stopped in the parking lot and ordered the driver to stop. His report states that the driver and passenger both turned, and made eye contact as he yelled, "STOP, POLICE". The driver then reached for something under his seat, and accelerated out of the parking lot. Almost all of these statements were directly contradicted by his fellow officers who were running right behind him. The client's statement, which was confirmed by the other officers testimony, was unaware that the officers chasing him through the parking lot. Upon exiting the parking lot he passed a number of other officers on horseback and drove north against traffic. Once the client saw overhead lights flashing behind him he pulled over immediately. After he was stopped, the client was arrested for fleeing and attempting to elude police. During a search incident to that arrest the police gained access to my client's trunk. Law enforcement was able to recover the following contraband from a book bag in the trunk:

1) .22 revolver
2) Box of .22 ammunition
3) 2 boxes of 9 millimeter ammunition
4) A 30 round clip of 9 millimeter ammunition (that fit the Tech 9)
5) A machete
6) A bullet-proof vest

One thing the police failed to recover initially was the Tech 9. The client and the passenger were questioned about the Tech 9, and both denied having it in their possession. At some point during the search of the vehicle Tampa Police Officers found a 30 round clip that could easily fit a Tech 9. At that moment law enforcement was convinced that the Tech 9 had been in there possession. They let the passenger go, and arrested my client. A crime scene technician was asked to retrace the vehicle's path of travel with a metal detector looking for the Tech 9 in bushes on the median.

My client was questioned about the circumstances surrounding his earlier altercation, and he stated that once he saw his passenger get into a fight he got out of the car and "attempted to pull out the revolver in the trunk" to scare them. Based on that information, and the fact that our client had a prior felony conviction, the police also charged him with felon in possession of a firearm. Some time later the tech 9 was found in some bushes on the median down the same path of travel taken by the client.

Prior to trial we filed a motion to prevent the State Attorney from mentioning any of the contraband found in the book bag (except for the .22 revolver), and the Tech 9. While Florida case law gives the State Attorney a lot of latitude to modify their charging document before and sometimes even during trial depending on the circumstances, the State's charging document only listed one felon in possession of a firearm charge. The charging document only stated "a firearm" (it never specified whether the firearm was the tech 9 or the .22 revolver). The state has the ability to file one charge of felon in possession of a firearm and fashion the charging document in such a way that allows the jury to choose whether the defendant was in possession of either one of the firearms. The State never modified their charging document in this way. For strategic reasons which would take too long to discuss in this article we did not file a Motion for Statement of Particulars before trial. Sidenote: The State never listed the co-defendant as a witness. He was critical to proving the Tech 9 was in my client's possession. Any attention drawn to that fact, i.e. A Motion for Statement of Particulars could have caused the State to list the co-defendant as a witness. Nevertheless, we objected to the admissibility of the Tech 9 and the rest of the contents of the book bag. Our argument was three-fold:

First, despite the circumstantial evidence showing the Tech-9 was in the vehicle, there was not enough evidence to prove our client was ever in possession of the Tech-9. Second, the State filed a charging document that specified only one felon in possession of a firearm charge. Third, the Tech 9 was not listed in the charging document, and therefore should not be mentioned or introduced into evidence during the trial. The State should not be entitled to enter two guns into evidence to prove one charge. The Court over our objection, allowed the State to introduce most of the contents of the book bag (ammunition, clips), and the Tech-9 into evidence.

For the benefit of the lay person the purpose behind filing a motion-in-limine prior to trial is to prevent mention or the introduction of what you believe to be inadmissible evidence at trial for various reasons. In this case we felt the prior bad acts, or crimes that are not included in the charging document, should not be permitted into evidence (remember the charging document listed one charge of felon in possession of a firearm). We also argued that the ammunition found in the book bag, that was also not included in the charging document, amounted to another crime (felon in possession of ammunition). The Court ordered that everything except for the machete, and the bullet proof vest could be mentioned and/or introduced into evidence at trial. However, the Judge cautioned the State before trial by saying, "I am assuming you will be able to offer evidence that the defendant was in fact in possession of this firearm (Tech 9) during this trial".

During trial the State offered circumstantial evidence that the Tech 9 was in my client's vehicle prior to his stop. However, as expected, they never offered enough evidence to prove he was "in possession" of the Tech 9. At the close of the State Attorney's case we moved for a Judgment of Acquittal as to the Tech 9. The Court granted our motion for judgment of acquittal (essentially a motion to dismiss during trial). The granting of the Motion for Judgment of Acquittal prompted another defense motion. Because the Court allowed the State to introduce the Tech 9 into evidence, over defense objection, and there was no evidence of possession, we felt the Court should grant a mistrial. This evidence was highly prejudicial, and prevents a jury from fairly weighing the evidence during their deliberations. The Court denied our motion for mistrial, but instructed the jury to disregard all mention of the Tech-9 during trial. No defense attorney on the planet feels this type of curative instruction will ever have its desired effect during jury deliberations.

I apologize for the sarcasm, but I would like to describe what goes through the criminal defense attorney's mind when the judge is instructing the jury on this issue:

You mean you want the jury to forget the machine gun the State Attorney paraded around the court room when he introduced it into evidence? You mean you want the jury to forget the testimony about the 30-round clip found in the book bag in the car that just happened to fit perfectly into the Tech-9 that was eventually found in the bushes on the exact path of travel that my client took before he was pulled over by police?

Needless to say I wasn't bursting with confidence that the jury would follow the Judge's instruction and erase the evidence they heard about the Tech-9 from their minds. Thankfully, I was wrong. The jury did just that. If you want to find out more information about firearm charges call us at 813-228-7095 or link to us at tampa criminal attorney.

WHAT YOU NEED TO KNOW IF YOU HAVE BEEN ARRESTED FOR DOMESTIC VIOLENCE IN TAMPA

Category: Domestic Violence

A domestic violence charges requires special considerations. Before a domestic violence charge is resolved it travels through two different courtrooms. A domestic violence charge starts out in First Appearance Court, and then it is shifted to the specialized Domestic Violence Court. The First Appearance judge will address the issue of a bond within 24 hours of every type of criminal arrest. However, the unique concerns created by a domestic violence charge require the First Appearance Court judge to utilize a special protocol when addressing the issue of bond on this type of crimnial charge.

BOND?

Every defendant, understandably, has the same question after their arrest. When am I getting out? Every criminal defendant is entitled to have a reasonable bond set within 24 hours of their arrest. Some criminal charges have bond amounts assigned to them automatically, and it is possible to bond out before first appearance court. However, the Florida Legislature has mandated that every defendant arrested for an act of domestic violence be held in custody until he is brought before the first appearance judge that will set his/her bond.

VICTIM'S APPEARANCE AT FIRST APPEARANCE COURT

If your spouse or significant other is interested in seeing you released from the County Jail it is important for them to attend your bond hearing at first appearance court. Judge Walter Heinrich oversees first appearance court. If the alleged victim appears at first appearance court Judge Heinrich will be interested in asking her or him a number of questions. First, he warns the victim of the consequences of misrepresenting the truth when answering his questions. The judge is very aware that many victims come to court to recant their statement in the police report in an effort to get the defendant out of jail. Judge Heinrich will notify the victim of the dangers of lying to him (perjury, filing false police report). Once Judge Heinrich is confident that the victim understands his/her rights he will question the alleged victim about the facts of the case, and any concerns he might have about the victim's safety. If Judge Heinrich is confident that the defendant can be released without posing any danger to the alleged victim, then he will set a reasonable bond. However, usually the Judge will impose a number of pretrial conditions to the defendant's release. First, typically the judge orders the defendant to have "NO CONTACT" with the victim. This order is very important because of its impact on the defendant. If the defendant is married or resides with the victim (which is commonly the case) it means he cannot return to the marital home. The defendant is also prohibited from having any verbal or written contact with the victim. As long as this condition of pretrial release is in place it raises a number of other issues. Where does the defendant reside? How can he get some clothes and other items from his home while this condition of release is in place? There are a number of ways to address these issues, but the first step we take is to set a Motion to Modify Pre-Trial Release in front of Judge Nick Nazaretian in order to modify this particular condition to "No Violent Contact". Judge Nazaretian is the judge who will ultimately resolve the domestic violence charge, and he will take a deeper look into these issues. Remember, Judge Heinrich's courtroom has one purpose: To set a reasonable bond, and order conditions of pretrial release. He is not there to decide the facts of the Domestic Violence charge. If Judge Nazaretian feels the situation warrants the removal of the "NO CONTACT" condition he will permit the defendant to have contact. Usually it takes a few days to arrange this hearing. In the meantime we will counsel our client on what steps to take to stay in compliance with the Judge Heinrich's order and address their needs at the same time.

All things considered however, it is very important to have the alleged victim attend the defendant's bond hearing in front of Judge Heinrich? It prevents the judge from having to speculate about the facts of the case, or his concerns for the victim's safety. I do not mean to say that the victim's attendance in First Appearance Court is necessary to get a reasonable bond. It isn't. Judge Heinrich can set bond without hearing from the victim. Either way Judge Heirich will also ask the State Attorney questions about the defendant.

Does the defendant have a criminal past? If so, for what?

Does the defendant have a prior arrest for domestic violence? If so, did it involve the same victim?

DIVORCE OR BREAKUP WITH CHILDREN

If you have been arrested for a domestic violence charge and you are married or have children with the alleged victim there are a number of critical issues that need to be addressed immediately. This criminal charge may be a pre-emptive strike in a custody dispute that will be filed shortly after the defendant's arrest for domestic violence. If so, the decision to call the police may have been the result of a much more a premeditated plan than a call for help. A factor considered by every family law judge to determine custody or visitation is whether one of the parents has committed an act of domestic violence. F.S. 61.13. Likewise, another factor considered by the family law judge is whether "either parent has knowingly provided false information to the court regarding any prior or pending action regarding domestic violence..." Your spouse or former lover may have hired a lawyer before the arrest. The contrived domestic violence charge could have been at the direction of a divorce attorney. Shortly after the arrest the former spouse/alleged victim will file a Petition For a Domestic Violence Injunction in the Domestic Relations Court. If the Domestic Relations Judge gives the alleged victim an injunction against the husband you can be sure her lawyer will go running to the family law judge to complain that the father is a violent man who should have limited contact with his children. In addition, the imposition of a domestic violence injunction is another obstacle to returning to your home. A "no contact" order that flows from first appearance court, and domestic violence injunction are two separate court orders that must be overcome before you can return to your home.

If your spouse has fabricated a criminal charge in the interest of gaining an advantage in Family Court it becomes imperative to prevail not only on the criminal charge, but also on the petition for domestic violence injunction. This type of situation, unfortunately, is more common than you would think.

CAN MY CHARGE BE DISMISSED?

Can my domestic violence charge be dismissed? It depends on the nature of the facts. A number of questions need to be answered:

Is the victim cooperating? While the victim's cooperation with the defense is helpful, it does not necessarily mean that the problem is solved and a criminal lawyer is unnecessary. The State Attorney decides when, and when not to file charges. The victim might be confronted by Victim Assistance and/or the State Attorney assigned to the case to explain why their story has changed since the night of the incident. That is why it is critical to hire an experienced criminal attorney to address the sensitive issues surrounding this situation. Whether the victim is interested in going forward or not is in many ways a minor issue for the State Attorney (prosecutor). What matters most to the prosecutor is whether he or she feels they can prove the charge beyond a reasonable doubt. It is our job to convince the State Attorney and/or the Judge that the charge cannot be proven beyond a reasonable doubt. Whether the victim is cooperating or not you must address a number of other issues before you can determine whether the domestic violence charge will be dismissed short of trial

1) Was alcohol involved?
2) Who called 911?
3) Were there any injuries?
4) Were photographs of the injuries taken?
5) What is victim's motive to falsely accuse?

Domestic violence charges can be more complicated than they at first appear. Moreover, if you fail to vindicate yourself the ramifications (domestic violence injunction/custody dispute) can be far reaching.

For more information on domestic violence call us at 813-228-7095 or link to us at Tampa Criminal Attorney.

Juvenile Grand Theft Charges Resolved Through Motion to Suppress

Category: Firm News

Representing juveniles is always interesting in that juvenile cases can many times raise a number of Fourth Amendment Issues. A recent case we resolved involved not only Fourth, but also some 5th Amendment issues. It doesn't take long to figure out the common theme of almost all juvenile crime. It is, without question, co-defendants. The more people involved in the commission of a crime the more difficult it is to defend. What usually makes matters worse in these cases is the fact that once juveniles have been caught they will usually give a statement to law enforcement that implicates themselves and their friends (co-defendants). Most prosecutors will tell you a good portion of their juvenile cases are made by offering a deal to a co-defendant in exchange for in-court testimony against another co-defendant(s). This strategy can sometimes lead to all the co-defendants entering pleas in their cases. However, in a number of instances you have situations where law enforcement may have acted prematurely by either detaining a juvenile too soon, or taking a statement from a juvenile without taking the proper steps in order to ensure the statement was voluntarily made. In this case the officers failed in both regards.

This case starts with a number (5) of juveniles breaking into a cart barn at a local golf course. Fifteen golf carts were stolen damaged ($30,000.00 worth of damage). Some were found in the lakes surrounding the golf course. Our client was one of two of the juveniles found walking nearby shortly after the break-in. Initially, they were confronted by golf-course security. When police arrived they stopped the two juveniles and questioned them about the break-in. One Hillsborough county sheriff deputy talked to the co-defendant, and the other spoke to our client.

Had the deputies spoken to the golf course security before approaching the juveniles they may have been armed with the reasonable suspicion necessary to conduct a temporary detention of my client. Many officers approach juveniles much differently than adults. They expect to encounter a frightened juvenile that is not only terrified of going to jail, but also of what their parents are going to do to them (at least when you are in an upscale golf community). Ultimately, they expect a lot of cooperation. Juveniles share the same privacy rights as the rest of us, but because of age, and an expectation of cooperation, law enforcement gives less consideration to their rights. The Deputy only knew that a burglary had occurred at the golf club. He didn't know the age of the suspects, what they looked like, or what they were wearing. This lack of information made the detention of my client illegal. We filed a Motion to Suppress the stop of the client, and another motion to suppress the statement he gave law enforcement.

Shortly after he was stopped the Deputy read Miranda to him. According to the Deputy the juvenile chose to waive his Miranda rights and answer the officer's questions. There is no bright-line rule that renders a confession by a juvenile involuntary, but the burden is much higher when determining a juvenile's waiver of Miranda as opposed to an adult's waiver of the Miranda rights. Here, the officer claimed that my client made a knowing and voluntary waiver of his Miranda rights. However, when you look at the totality of the circumstances surrounding the statement the Court decided the waiver of Miranda was not voluntary. Some issues the Court considers in making that determination are the following:

1) The manner in which the Miranda rights were administered, including any cajoling or trickery.
2) The suspect's age (in our case he was 15 years old), experience, background, and intelligence.
3) The fact that the suspect's parents were not contacted, and the juvenile was not given an oppurtunity to consult with his parents before questioning
4) The fact that the questioning took place in the station house, and
5) The fact that the interrogators did not secure a written waiver of the Miranda rights at the outset

In our case the parents were contacted, but the juvenile was never given an opportunity to consult with them. During his statement to the Deputy our client did admit involvement in the crimes.

We filed two motions claiming the stop of our client was unlawful and another motion claiming that the juvenile's statement to police should be suppressed because he did not voluntarily waive his Miranda rights.

After Judge Campbell heard the State's evidence as to the stop of our client she granted our motion to suppress the evidence emanating from the stop. Because the granting of our motion to suppress the stop was dispositive of the case, the Court had no reason to address our second motion.

If you should have any questions about unlawful stops and/or how law enforcement should legally take someone's statment call us at 813-228-7095 or link to Tampa criminal attorney.

Tampa Criminal Attorney-CHILD HEARSAY STATEMENTS in a Sexual Abuse Trial

Category: Firm News

The Florida Legislature has balanced the need for reliable out of court statements from child abuse victims and the rights of the accused. Florida Evidence Rule 90.803(23) sets out the foundational requirement that must be laid in order for these hearsay statements to be admitted into evidence. The rule is broken down into three sections.

Section (a) describes the basic threshold requirements that must be present before the Courts will even consider the introduction of this testimony. Unless there are some indicators of untrustworthiness a statement from a child with a physical, mental, emotional, or developmental age of 11 or less describing an act child abuse or neglect, any act of sexual abuse against a child, the offense of child abuse, the offense of aggravated child abuse, or any offense involving an unlawful sexual act, contact, intrusion, or penetration performed in the presence of, with, by, or on the declarant child, not otherwise admissible, is admissible in evidence in any civil or criminal proceeding if:

1. Subsection 1 sets out the procedural requirements that the Court must adhere to in order for the statement(s) to be admitted into evidence. The Court must conduct a hearing outside the presence of the jury to determine whether the time, content, and circumstances of the statement provide sufficient safeguards of reliability. In making that determination the Court can consider the following:

a. Mental and physical age of the child
b. Maturity of the child
c. The nature and duration of the abuse or offense
d. Relationship of the child to the offender
e. The reliability of the assertion
f. The reliability of the child victim
g. Any other factor deemed appropriate; and

2. The child either:

a. Testifies; or

b. Is unavailable as a witness, provided that there is other corroborative evidence of the abuse or offense. Unavailability shall include a finding by the Court that the child's participation in the trial or proceeding would result in a substantial likelihood of severe emotional or mental harm, in addition to findings pursuant to 90.804(1).

The rule requires an additional finding of corroborative evidence of the abuse only if the child is unavailable. The rule requires other "corroborative evidence" where the child is unavailable to ensure that no defendant is convicted solely on hearsay evidence. If the child is testifying the court does not need to determine the additional factor of corroborative evidence. However, it is important to appreciate what qualifies as "corroborative evidence" in any child abuse/sex crimes charge because if there is corroborative evidence of the child's allegation it could determine two very critical issues at trial:

1) Will the child hearsay statements of an unavailable child be admitted at trial? And

2) Will there be enough evidence for the State to get passed the defense's motion for Judgment of Acquittal?

Typically, it is impossible to prove someone's guilt based solely on a prior inconsistent statement. Prior inconsistent statements by themselves are not substantive evidence. It takes substantive evidence for a jury to rule beyond all reasonable doubt that a defendant is guilty. Corroborative evidence becomes a critical issue in sexual abuse cases because impeachment standing alone is not sufficient evidence to convict someone. The Florida Supreme Court and the Florida Appellate Courts have addressed this issue in a number of cases. It has been determined that a prior inconsistent statement by a child with additional corroborative evidence could make the statement substantive for evidentiary purposes. This could lead to a lawful conviction in the eyes of our Courts. (See Florida Supreme Court decisions in Baugh, and Beber).

What qualifies as "corroborative evidence"?

1) The defendant's own statement to law enforcement.

2) Physical evidence that a child has been abused

3) Even denials can have inculpatory details that qualify them as "corroborative".

4) Similar fact evidence (William's Rule Evidence).

What doesn't qualify as "corroborative evidence"?

1) The child's own statements can never qualify. (the "other corroborating evidence" within the meaning of the hearsay exception denotes evidence derived from a source other than the child victim's own statements).

2) Statements of future intent (that a person wants to have sexual contact with a child).

3) A counselor's subjective belief in the veracity of a child's hearsay statement.

The other aspects of the rule require the State to notify the Defense within 10 days of trial that a statement which qualifies as a heasay exception pursuant the Child Hearsay Rule will be offered as evidence at trial. The notice must contain the content of the child's statement, the time at which the statement was made, and the circumstances surrounding the statement which indicate its reliability. The Court must make specific findings of fact, on the record under this rule.

If you would like to find out more about "child hearsay" and its impact in court call us at 813-228-7095 or link to Tampa criminal attorney.

Tampa Criminal Attorney- Child Pornography and the "Citizen Informant"

Category: Firm News

The easy access to Child Pornography on the internet has dramatically increased the number of prosecutions for this offense across America. Unfortunately, many people prosecuted for possession of child pornography are completely naïve to the criminal nature of their conduct. Unlike twenty years ago when someone had to go out of their home and actively seek out these materials, now committing a very serious criminal offense is just a few clicks away. The ease of access to this material on the internet also leads some to believe that, while viewing it is lurid and wrong, it is not necessarily illegal. Moreover, most people believe it's impossible for someone to penetrate the security of their computer and determine what computer files have been downloaded onto the hard drive. This ignorance leads to shock when law enforcement arrives at their home with a search warrant to collect their computer(s).

How does law enforcement become aware that someone has downloaded child pornography? Photographs or video images on a computer contain certain traceable digital code. Law enforcement has collected thousands and thousands of digital images (child pornography) which contain the traceable code. This code can be traced by any internet service provider (AOL, Internet Explorer, Safari...etc...). The internet service provider's server is equipped to identify these digital images and the subscriber that has transmitted them. If the internet service provider is notified that someone has disseminated child pornography over the internet they are then required by federal law to report the dissemination of this material over the internet to the National Center for Missing and Exploited Children (NCMEC). The NCMEC then reports the transfer of this material to local law enforcement. Law enforcement receives the photographic images from the NCMEC and reviews them. Once they determine that the images are in fact child pornography the police subpoena the internet service provider for the subscriber information for the specified screen name. Once law enforcement is in possession of this information they are prepared to draft an application for a search warrant for the subscriber's home.

Some have questioned the reliability of the information contained in these search warrants. These search warrants do not specifically identify the internet service provider's employee (business records custodian) charged with receiving and reporting the information to NCMEC. This brings us to the procedures followed by law enforcement in applying for a search warrant and what information must be contained in every search warrant.

It is important to understand the role of the judge in this criminal investigation. Without a search warrant law enforcement would be unable to enter someone's home and collect this evidence. Before a judge or magistrate signs off on a search warrant they must determine whether there is probable cause to believe the contraband described in the warrant is present in the residence. The United States Supreme Court sums up the analysis each magistrate must apply to determine if probable cause exists:

The task of the issuing magistrate is simply to make a practical, common-sense decision whether, given all the circumstances set forth in the affidavit before him, including the "veracity" and "basis of knowledge" of persons supplying hearsay information, there is a fair probability that contraband or evidence of a crime will be found in a particular place.

The Second District Court of Appeals in Florida has determined that the information received from the internet service provider in the fashion described above is reliable and satisfies the probable cause requirement for any search warrant. The Court has also ruled that the internet service provider described in the scenario above qualifies as a "citizen informant". In the Woldridge opinion the 2nd DCA stated:

In addition, AOL was acting in a manner analogous to that of a citizen informant when it forwarded the information to NCMEC. "A citizen-informant is one who is 'motivated not by pecuniary gain, but by the desire to further justice.' " State v. Maynard, 783 So.2d 226, 230 (Fla.2001) (quoting State v. Evans, 692 So.2d 216, 219 (Fla. 4th DCA 1997) (quoting State v. Talbott, 425 So.2d 600, 602 n. 1 (Fla. 4th DCA 1982), and Barfield v. State, 396 So.2d 793, 796 (Fla. 1st DCA 1981))). A citizen informant is one who "by happenstance finds himself in the position of a victim of or a witness to criminal conduct and thereafter relates to the police what he knows as a matter of civic duty." Evans, 692 So.2d at 219 (quoting Wayne R. LaFave, Search and Seizure § 3.3 (3d ed.1996)). As a general rule, the reliability of a tip from a citizen informant is presumed, and corroboration of the tip is not generally required. Maynard, 783 So.2d at 228; Gonzalez, 884 So.2d at 334.

The code associated with these images has enabled law enforcement (through private companies) to develop software aimed at tracking and following anyone who might view and/or disseminate this material on the internet. At the present time many people are viewing child pornography on pier to pier networks. These networks are monitored by law enforcement every moment of the day with the same type of software. In the Court's view the way information is transmitted over computers allows law enforcement to employ very reliable methods upon which to base a search warrant of someone's home.

To learn more about the issues surrounding a search warrant for child pornography you can call us at 813-228-7095 or link to tampa criminal attorney.

Tampa Criminal Attorney- Successfully Completing Probation

Category: Criminal Law

Many Jurisdictions in the State of Florida are creating criminal courtrooms that are specialized in a number of different areas. For instance in Tampa we have courtrooms focused solely on Drug Rehabilitation, Domestic Violence, Violations of Probation, and Post-Conviction Relief. These courtrooms address a number of challenges faced by our court system. First, judges that would normally be required to deal with a wide array of different criminal charges are no longer forced to address what would be a much larger docket. Second, while no two cases are exactly alike, judges addressing one area of the law become very knowledgeable about the particular legal issues regularly faced in their specialized courtroom. Addressing many of the same factual scenarios also leads to uniformity in the resolution of similar cases.

Tampa has also decided to consolidate violations of probation that occur in Circuit/Felony court. As long as your violation of probation does not involve a new felony law offense or emanate from another specialized division your felony VOP will be directed to this division. The judge presiding in this courtroom is Daniel Perry. He is reasonable and fair, but it is important to understand that neglecting the conditions of probation in this courtroom can lead to prison. Unfortunately, many people put on felony probation are unaware how precarious their situation can become when and if they violate. It is important to understand that probation is an opportunity for a defendant to avoid incarceration so violating the conditions of probation is a serious offense. If your probation officer files an affidavit claiming you have violated and issues a warrant for your arrest it is extremely important to contact an experienced criminal attorney to guide you through this process. You might be able to avoid turning yourself in on the warrant at the jail. Your lawyer should also make you aware of what you should expect based on your violation and the circumstances surrounding your case. Many times Judge Perry will want to address you directly. Obviously, the answers to his questions go a long way to determining the outcome of your hearing. Your lawyer's advice in this regard is critical. If the judge permits you to stay on probation it is important to listen to his advice. Judge Perry is very conscientious about spending time explaining to probationers the error they have made and what they can do to successfully complete the conditions of probation. He will let you know what will and will not be tolerated by the Court.

If you would like more information about violations of probation in Tampa you can call us at 813-228-7095 or link to tampa criminal attorney.

Tampa DUI Attorney Analyzes the Accident Report Privilege and the Insignificance of the "Changing of Hats"

Category: Criminal Law

There aren't very many events in life that rival the terrible feeling of being arrested for Driving Under the Influence. When an accident is involved this experience can many times become even worse. Most lawyers engaged in defending these cases are very familiar with the "Accident Report Privilege" and its repercussions. This article is designed to give some guidance to non-lawyers who have very little knowledge on this law and how it operates.

The accident report privilege springs from every driver's statutory duty to answer questions posed to him/her by law enforcement when they have been involved in an accident. When someone is involved in an accident and law enforcement suspects them of being intoxicated it presents a special problem. The duty to report compels the DUI driver to answer all the officer's questions about the accident, but in the process the answers to those questions could lead to very incriminating statements about a potential criminal charge of DUI. Every person suspected of committing a crime also has a right to be notified of their fifth amendment rights (usually before a "custodial interrogation" or a formal arrest) prior to law enforcement questioning them about the alleged criminal conduct. To address the problem of compelling possible incriminating statements from driver's involved in accidents that could flow from criminal conduct the Florida Legislature enacted the "Accident Report Privilege" (See Florida Statute 316.066(7)). The statute states that statements by a suspected driver to law enforcement during the accident phase of the officer's investigation are privileged and inadmissable against the driver in any trial civil, or criminal. The only exception to that rule involves statements made by the driver to the officer that do not violate the driver's privilege against self-incrimination (this exception can arise when the driver's statment qualifies as an "excited utterance"). In response to this statute law enforcement officers investigate an accident that could involve a criminal traffic charge in a different way. They initially ask questions of the driver during the "accident phase" of their investigation (like they would after any traffic accident). If they become suspicious during the accident phase of their investigation that the driver was involved in criminal conduct (DUI, vehicular manslaughter), they begin the "criminal phase" of their investigation.

The critical question for anyone suspected of being involved in any criminal traffic charge is when does the "accident phase" end, and the "criminal phase" begin. The answer to this question will determine which statements, made by the accused, are admissable. Florida Courts have debated the proper procedure to follow when notifying a driver involved in an accident that the investigation is changing from the accident phase to the criminal phase. For years many courts felt that the "changing of hats" method properly notified the suspected DUI driver involved in a crash that the officer was moving from an accident investigation to a criminal investigation. The "changing of hats" amounts to an officer notifying the driver that, "Mr. Smith, I am now changing from an accident investigation to a criminal investigation, will you answer my questions". The Florida Supreme Court has recognized that the "changing of hats" is an insufficient approach to notify the suspected driver that he or she is no longer compelled to answer the officer's questions pursuant to Florida's duty to report statute. The Florida Supreme Court's position is simple. The focus should be on whether the driver's Fifth Amendment Rights were violated. The only way to adequately notify someone that their duty to report information regarding the accident is over, and they have a right to remain silent is by reading them their Miranda Rights. In their holding the Florida Supreme Court stated the following:

"We hold that the privilege granted by section 316.066 is not applicable in this case where Norstrom was not told that he had to respond to the questions asked by the officers and where Norstrom was given his Miranda rights. Accordingly, we quash the decision of the district court on this issue. Furthermore, we also disapprove its prior decision in West v. State, 553 So.2d 254 (Fla. 4th DCA1989). To clarify our decision, we emphasize that the privilege granted under section 316.066 is applicable if no Miranda warnings are given. Further, if a law enforcement officer gives any indication to a defendant that he or she must respond to questions concerning the investigation of an accident, there must be an express statement by the law enforcement official to the defendant that "this is *441 now a criminal investigation," followed immediately by Miranda warnings, before any statement by the defendant may be admitted."

Some prosecutors read the Florida Supreme Court's holding in Norstrom v. State literally, and believe that Miranda is only required when the officer notifies the driver that he/she has a duty to report. The holding in the Norstrom case is clarified in the third district court of appeals decision in State v. Marshall. In a footnote the 3rd DCA gave a clearer meaning to the Florida Supreme Court's statement that a "changing of hats" must occur, and Miranda must be read when the officer proactively notifies the suspected driver that they must answer the investigating officer's questions. In their footnote the 3rd DCA stated the following,

"In so holding, the court pointed out that not only had Norstrom been given his Miranda rights, but also "Norstrom was not told that he had to respond to the questions asked by the officers...." 613 So.2d at 440. The court also stated: Further, if a law enforcement officer gives any indication to a defendant that he or she must respond to questions concerning the investigation of an accident, there must be an express statement by the law enforcement official to the defendant that "this is now a criminal investigation," followed immediately by Miranda warnings, before any statement by the defendant may be admitted.

Id. at 440-41. As we interpret it, the court is addressing the situation which would exist if, during the accident investigation phase, the investigating officer administered Miranda warnings but then at some point also told the reporting person that he or she was required to respond to questions concerning the investigation of the accident. Telling the reporting person that he or she must answer questions during the accident investigation would undo any earlier-administered Miranda warnings. It would be then necessary at the conclusion of the accident investigation to advise the reporting person that the criminal investigation was beginning and to administer new Miranda warnings."

The problem is that many prosecutors feel the only time that Miranda is necessary is when the officer proactively notifies the suspected driver that he or she must answer questions pursuant to the "duty to report" statute. However, the 3rd District Court of Appeals interpretation of the Norstrom holding in Marshall should be accepted by all courts in the State of Florida because the Florida Supreme Court adopted the Marshall opinion. This in effect makes Marshall, and the third district's interpretation of the holding in Norstrom the law in the State of Florida.

Link here for more information on what steps a tampa criminal attorney takes when assessing a DUI, and what stop issues might be present in your case.

Sometimes Even Lawyers Need to Know When to HIre a Lawyer

Category: Criminal Law

C. v. V; Judge: William Law; Date: June 21, 2007

FACTS: Our client was a defendant in a civil suit involving the sale of a medical waste disposal unit. Early in the law suit the plaintiffs petitioned the court for an injunction to prohibit the sale of the unit to buyers in Spain. During that hearing the plaintiffs claimed that Mr. Vance misled the Court in several ways in an effort to promote the sale of the unit without the consent of the shareholders. Plaintiff's counsel felt the representations were so misleading they motioned the Court to find Mr. Vance in Criminal Contempt. Initially, plaintiffs counsel's attempts to get the Court to grant the motion failed, but Judge Willard Pope eventually granted the motion because of the affadavits claiming to have knowledge of the falsity of the statements. Florida Rule of Criminal Procedure 3.840 (a).

Civil Attorney, John Schifino, of the Williams Schifino law firm represented Mr. Vance in the shareholder derivative suit. Once the Court issued the Order to Show Cause, and Mr. Vance was threatened with the possibility of being convicted of a crime and sentenced to jail, Mr. Schifino called our office immediately. Opposing counsel, on the other hand, decided to prosecute the contempt charge without the assistance of a criminal attorney. Many of the plaintiffs in charge of the management of this civil suit were themselves lawyers, which made the decision to allow a civil attorney to prosecute this criminal charge even more surprising. It was a decision that turned out to be fatal to the prosecution of the charge.

After Judge Pope issued the Order to Show Cause the case was transferred to Judge William Law's court room. A couple of months after the arraignment of the criminal charge, opposing counsel withdrew from the case, and the shareholders retained another civil attorney. Months passed and opposing counsel made no efforts to set up depositions. Unlike criminal cases, it is not unusual for civil cases to last several years. Opposing counsel, probably because he is used to prosecuting civil cases, felt that his recent introduction into the case warranted a number of continuances to allow him to familiarize himself with the case. He refused to appreciate a right that all criminal defendant's share; the right to a speedy trial.

Mr. Vance, like any one else charged with a crime, has a right to a speedy trial. If the prosecution fails to try a criminal defendant's case within a specified period of time, and again fails to try the defendant's case within the recapture period, the defendant is entitled to discharge (dismissal) from the crime. Florida Rule of Criminal Procedure 3.191(p). In Mr. Vance's case the speedy trial eventually expired, and we filed a notice of expiration of speedy trial with the Court, and the prosecution. The prosecution, probably because he had no experience in criminal court, made no efforts to respond to the notice of expiration of speedy trial. His failure to act led us to file a Motion for Discharge (Dismissal). After hearing our argument at the Motion for Discharge hearing the Court turned to opposing counsel for rebuttal. During opposing counsel's argument he responded to the judge's questioning by saying, "I am not sure your honor, because I am not a criminal attorney".

I make this point to emphasize a theme that repeats itself in many of the criminal cases that we see at our office. That recurring theme is the failure of many people being investigated for criminal charges to hire a criminal attorney as soon as they have been contacted by law enforcement. Many people, probably like the lawyer who decided to prosecute this criminal contempt charge, feel that criminal matters are simplistic. They feel that they might be able to save themselves the fee paid to a criminal attorney if they resolve this criminal matter on their own. Tell that to the civil attorney who attempted to prosecute the criminal charges against our client. As an esteemed colleague of mine once said, "If you find out you have a heart problem, you don't go see a podiatrist".

Seminar For Tampa DUI Lawyers

Category: Firm News

A seminar for handling DUI cases is being offered on Friday, May 19, 2006. The seminar is being held at the Tampa Marriott Waterside, and will focus on the following issues:

(1) DMV - Hearings and Appeals (Writ of Certiorari)
(2) Case Law Update
(3) Jury Selection, Opening Statements and Closing Arguments
(4) Pretrial Motions And Blood/Breath Updates
(5) DUI Trial themes and tactics
(6) Attacking Field Sobriety Tests

The course has been approved by the Bar for 7 CLE credits and the speakers are all well known local DUI lawyers.

Closing Argument Competition

Category: Firm News

The Florida Bar has approved CLE credits for participation in the Closing Argument Competition at the Stetson University College of Law. The competition does not take a lot of your time, and it is very helpful to the students. Four students competed in the last round yesterday and Ashley Jones ended up winning. According to the competition's coordinator, Megan Lattz, Ms. Jones won a $300.00 cash prize, and will be exempt from having to compete in the first round of competition in Stetson's trial team competition. If you are interested Ms. Laatz is looking for more lawyers to act as jurors on the Opening Statement competition coming up soon. You can reach Megan Lattz through the Stetson University School of Law at (727)576-0584.