Your Phone and the Fourth Amendment

The Ohio Supreme Court recently made a groundbreaking decision. In a split decision, the justices of Ohio’s highest court found that a cell phone is entitled to Fourth Amendment protections and that a law enforcement officer cannot obtain information from your cell phone without a warrant.

Courts have pointedly avoided subjects such as this. How does the Fourth Amendment to the United States Constitution, over two hundred years old and haling from a vastly different society, effect the modern trend of personal electronic devices? More importantly, would such a decision remain relevant in a world of continuously evolving technology? How does a principle from another era apply to today’s reality?

According to the Ohio Supreme Court, the focus remains on one’s expectation of privacy. By comparing a smart phone to a laptop computer in its ability to store large amounts of personal data, the Court found that if law enforcement chooses to access your phone and obtain information stored on it, they must obtain a warrant first. In doing so, the Court recognized our growing dependence on electronic devices and our need to safeguard these devices from unwanted access.

While requiring a warrant may seem like a minor protection, it is actually quite profound. In requiring a warrant for the search of cell phones, the Court has taken phones out of the realm of tools used to provide probable cause for a search or seizure and placed them in the realm of things that require probable cause for a search or seizure. In short, the Court barred police from using your phone to build a case against you, and has instead required them to build a case against you first, and then obtain the right to access your phone.

If you are facing criminal charges or feel that law enforcement has unjustly accessed your personal information, please call me at (904)350-9333 or visit my website at www.shafercriminallaw.com for a free consultation. The law is a constantly evolving creature, and you need an attorney who is up to date on all of its nuances.

Regards,

Robert Shafer

Appeals

In the criminal justice system, losing does not always mean you lose, and winning does not always mean you win. Sometimes, when you think a case is over, an appeal can mean the difference between a prison sentence and freedom.

An appeal is the process by which a party asks a court with greater authority to review a decision by a court with less authority, commonly called the appellate court and the lower court, respectively. If the lower court is found to have made the wrong decision in a case, the appellate court will often dictate to the lower court exactly why the decision was wrong and what to do with the remainder of the case.

Appeals are a fundamental part of our criminal justice system. They provide yet another method of settling legal and factual disputes. More importantly, they provide a check on injustice and prevent judges from being biased either for or against the prosecution. After all, a basic tenet of our justice system is that everyone gets treated fairly, even the government.

Appeals also provide a way to overturn judges who do not give criminal defendants the rights they are entitled to. Often times, the only courts where constitutional rights are scrupulously honored are the higher courts, where judges are not bogged down with local politics and the need to maintain a tough reputation.

Some courts’ sole purpose is to do nothing but appellate work – the United States Supreme Court is one of them. Florida has an extensive appellate system that is comprised of five District Courts of Appeal. These courts are designed to handle appeals from felony trial courts and, if necessary, ask the Florida Supreme Court to review their decisions. This is typically only done when District Courts of Appeal disagree on a certain point. When this happens, a case has the rare opportunity to be addressed by the highest court in the state, and any subsequent decision is binding on every Florida court.

Appeals can be tricky, and are often based on technical mistakes. Errors of law can creep into proceedings that ultimately seem to be going along fine. When this happens, you need an experienced attorney to handle your case and make sure you rights have not been violated.

For more information on the appellate process, call me at (904)350-9333 or visit my website at www.shafercriminallaw.com

Minimum Mandatories

In response to rising violent crimes involving guns and large amounts of weapons, the Florida legislature enacted a series of statutes that require mandatory prison terms without the possibility of gain time. These types of sentences are commonly known as mandatory minimums. Mandatory minimums are very tough sentences, and I believe they are unconstitutional.

In school, we are taught that our government runs on a principal of checks and balances, meaning that separate branches of the government decide different aspects of the law, thus limiting the power that any one branch holds. The Executive, Judicial, and Legislative branches all work separately to decide everything from criminal justice to taxes. But what happens when one branch oversteps their bounds and limits another branch’s ability to do its job?

Minimum mandatories are a prime example of this. Judicial discretion is the cornerstone of our criminal justice system. Judges are elected by the people to make wise, informed decisions. Under the Florida Constitution, judges have sweeping authority to decide the appropriate sentence in criminal cases. This is one way that the Judicial Branch of government checks the Executive Branch, by ensuring that, no matter what charges are filed, a fair and justice sentence is determined.

The Florida Legislature has apparently decided that the judges of Florida are not wise enough to exercise this discretion. By enacting minimum mandatories, the Legislature has usurped a portion of the Judiciary’s authority. The job of the Legislature is to determine what acts are illegal. The job of the Judiciary is to determine what the punishment for those acts are. It’s that simple.

Minimum mandatories have been created for many crimes, including crimes involving drugs and firearms. If you are facing such a penalty, call me at (904)350-9333 or visit my website for a free consultation. With so much at stake, you need an experienced criminal defense attorney at your side.

Self Defense

Believe it or not, you can be prosecuted for defending yourself. Many cities in North Florida, including Jacksonville, have created nebulous municipal ordinances that outlaw “fighting.” These ordinances make it a criminal act to engage in any sort of physical combat, even if you were just defending yourself.

Section 776.012 of the Florida Statutes allows for the use of force to protect yourself from a credible threat. This defense is an absolute defense to any criminal charge, meaning that if it applies, you are not liable for any criminal wrongdoing. How, then, do cities get away with criminalizing conduct that is protected under the law of our State? The answer is simple, and all too common: money.

Law Enforcement is driven by money. Arrests usually result in bonds being set for release, which in turn gets money to bondsmen. Criminal charges, even ones of fighting, carry with them mandatory court costs and, on occasion, additional fines. Where do these court costs and fines go? Right back into the pockets of the criminal justice system. Many people go through this process without ever knowing that they have a legal defense to the charges against them, or don’t take the charges to trial because they are not represented by an experienced attorney.

Don’t fall victim to bogus ordinances. In my 29 years of criminal law experience, I have defended thousands of clients. If you are being accused of a crime that you believe you have a defense to, you will still need an experienced attorney to raise that defense in court. Call me at (904)350-9333 for a free consultation.

Injunctions

Sometimes people need a restraining order.

In Florida, a restraining order is commonly called an “injunction.” An injunction is simply a legal term for a court order that either forbids you from doing something or that forces you to do something. Sometimes these injunctions provide much needed protection from dangerous people, but sometimes they can be used as vindictive tools to further another person’s agenda.

For example, there have been times that I represented young women who were frightened because their ex-boyfriend or ex-husband would not leave them alone. And by this, I mean that their conduct rose to a level that normal people wouldn’t feel comfortable with, like hanging around the outside of her residence at night, uninvited, or sending threatening texts or emails.

When relationships deteriorate to this point, an injunction can be a useful way of putting needed space between two people. I have also represented people in the opposite situation. Sometimes people use injunctions to further their own agendas in divorce proceedings or custody battles. Sometimes people use injunctions for revenge. The point is that the injunction process can be abused. When that happens, you need an experienced attorney in the courtroom fighting for your interests.

Injunctions can be issued upon a showing of a credible threat to one’s person or property. All testimony in injunction hearings is under oath, meaning that a lie may result in being held in contempt of court or perjury charges. Most importantly, violating an injunction is a first degree misdemeanor that can be punished by up to a year in jail. There can be a lot at stake in these types of proceedings. Don’t face it alone. Call me at (904)350-9333 for a free consultation.

Regards,

Robert Shafer

Worthless Checks

For years, the State of Florida has placed itself in the position of a debt collector for private companies such as Wal Mart, Publix, and Winn-Dixie. Florida’s current worthless check law makes the passing of a worthless check a crime punishable with a jail sentence. This questionable legislative policy has cost the tax payers money and put prosecutors in the undesirable position of debt collectors.

If you make a business agreement with another person and you fail to live up to your end of the contract, you could be sued in civil court. This is true in every jurisdiction in the United States. If another person agrees to pay you for your services and then fails to pay, your remedy is to bring a civil suit against them. However, if you happen to be a large corporation with ties in the legislature, criminal charges can be filed against yo u.

Worthless checks are easy to prevent. In fact, most retail stores have technology in place that can instantly verify whether or not an account has sufficient funds to cover a check. Rather than invest in this sort of preventative security, corporations simply rely on your tax dollars to prosecute those who could easily be prevented from ever committing a crime in the first place.

The most disturbing part of worthless check prosecution is the fact that many overdrawn checks are written by accident. With today’s banking methods of automatic payments and withdrawals, it can be difficult for someone to know exactly what their checking account balance is at any one time. Some people simply don’t pay enough attention to balancing their checkbook, and while they should be responsible for the checks they write, it doesn’t mean that they should face criminal prosecution for miscalculating their bank account balance.

Worthless check prosecution in Florida needs to change. Legislators should recognize that there simply is no legitimate interest served in prosecuting misdemeanor worthless checks, and should leave such issues where they belong: civil courts. State Attorneys should refuse to be debt collectors for corporations who lobby for these types of laws. In the end, the only people who should be concerned about bad checks are those who wrote and received them. In my opinion, everyone else should just stay out of it.

If you are facing prosecution for a similar issue, give me a call at (904)350-9333 or visit my website at www.shafercriminallaw.com.

Regards,

Robert Shafer

Fines & Court Costs

The Florida Legislature has continued to raise the amount of fines and court costs over the years. This often results in an undue hardship on those who commit petty offenses, and is bordering on disproportionate punishment.

For example, the court costs for a first time DUI are just over $500.00. Coupled with a mandatory $500.00 court costs, your first DUI will costs you a minimum of $1000.00 that must be paid before your case can be completely disposed of. A first time petit theft carries with it a mandatory court costs of over $100.00, usually accompanied by a fine of some sort imposed by the judge. A domestic battery charge has a mandatory court cost of $592.00, and judges typically add additional fines onto that.

The Florida Legislature has continually raised court costs and fines in the previous years, hoping to generate income from the criminal justice system. In my opinion, these increases have more to do with helping balance an overspent budget than actually providing punishment to those accused of criminal law violations. This sort of legislative action is unconstitutional, and deviates from the stated purpose of Florida’s criminal laws.

Most people don’t have this sort of money just lying around. Here at Shafer & Associates, we understand that in these tough times, unexpected expenses such as a criminal case can be devastating. That is why we always focus on giving you the highest quality legal representation possible while minimizing the costs to our client. I run a streamlined law firm that focuses on results in the courtroom.

Your criminal case should be handled by legal experts who know how to minimize your exposure to unwanted fines and fees. Call us at (904)350-9333 or visit our website at www.shafercriminallaw.com for more information.

Regards,

Robert Shafer

Possession

At my firm, we represent many cases that involve the possession of something that is illegal. Possession is more than simply having a thing. The law says that possession is having a thing and knowing that you have that thing. Without this knowledge, the elements of the crime are incomplete, and the State cannot prove their case.

If you are arrested for possession of any sort of illegal object, the easiest way for you to be found guilty of the crime of possession is if you admit to knowing you had the object in your possession. Without your admission, the charge becomes much, much harder to prove. Exercising your constitutional right to remain silent can save you a lot of grief further down the road.

However, most people think that by cooperating with law enforcement and talking to them, they will somehow garner favor with the police and be let go. In my experience, this rarely happens, if at all. The police have one job: to arrest people. They want you to make that job as easy as possible for them, but you are under no obligation to do so.

If you have been arrested for possession of a controlled substance or a firearm, you need experienced legal representation. Call us at (904) 350-9333 or visit my website at www.shafercriminallaw.com for a free consultation.

~Robert Shafer

Hung Juries

Most people know that a jury trial typically results in one of two ways: guilty or not guilty. When the State assumes the burden of proving a case beyond a reasonable doubt, they must do so for every single person on a jury. When one person is unconvinced of the guilt of a defendant, the result is not an acquittal – it is known as a hung jury. What happens when the State has failed to meet their burden of proving a person’s guilt beyond a reasonable doubt? It’s called a mistrial. It means that the State gets another shot at prosecuting you. Why does the State get multiple opportunities to take you to trial? Why doesn’t this practice violate the Double Jeopardy rule? Does the State just get to keep bringing me back to trial again and again? These are questions that Criminal Defense Attorneys often struggle with. If your trial resulted in a mistrial, the State of Florida is permitted to try you again, even though you have already been brought to trial once. Florida law makes a clear distinction between a hung jury (a jury unable to reach a unanimous conclusion) and an acquittal (a jury has unanimously decided to find the defendant not guilty). The result of a hung jury is, in effect, as if the original trial never took place, and so another one must be conducted. The result of an acquittal is that you can never be tried again for that charge. Even though this is a common enough occurrence, it still causes Defendants to question the fairness of system that seems to give the State limitless chances to meet their burden. After the emotionally draining process of a full-blown jury trial, they find they must go through the entire process again, simply because the State failed to do their job the first time around. The most frightening part is that the State could potentially proceed to trial against a person countless times, and as long as there is one person on the jury who is not willing to find a defendant not guilty, the process will be repeated over and over again. If you are facing the prospect of criminal prosecution, don’t face it alone. You need experienced, qualified legal representation. Call my office at (904)350-9333 or visit our website at www.shafercriminallaw.com to set up a free consultation.

Regards,

Robert Shafer

Probation Violations

Florida law allows for judges to sentence criminal defendants to probation in most cases. Sometimes, people either fail to meet the requirements of probation or get a new charge while on probation. In other words, sometimes people screw up and violate probation. When that happens, there can be very serious consequences.

Probation violations can be particularly infuriating to a judge. Often times, a judge will feel that he or she is “taking a chance” on a person by sentencing that person to probation instead of jail or prison. When that same person then appears in court because a probation officer claims that person has violated probation, a judge can often take the matter personally and issue harsh punishment.

If you violate probation, you can be sentenced to the maximum amount of prison time allowed for the offense for which you were on probation. Judges have a lot of discretion on probation violations. In addition, if your violation is because a of a new crime, a judge can find that you violated your probation by committing that crime before you are even convicted of the new crime. A judge is the sole finder of fact in probation violation proceedings.

If you were not satisfied with the attorney who originally handled your case, that attorney does not have to represent you for a probation violation. Also, just because you did not have your own attorney during the initial case that you were placed on probation for does not mean you cannot have your own attorney at a probation violation hearing. At my firm, we handle many probation violations. Many times, court appointed attorneys and less experienced attorneys do not take the time to explain to the judge the reasons behind a probation violation, or bring in witnesses to testify at violation hearings. We do. This extra effort is key to making sure a violation of probation has as little impact as possible.

If you have been placed on probation, don’t blow it! However, if you find yourself facing a violation of probation, call us at (904) 350-9333 or visit our website at www.shafercriminallaw.com

Probation is a very serious responsibility with dire consequences. Do not face those consequences, or the judge, alone.

Regards,

Robert Shafer