The Fourth Amendment and Emails

A Federal Appeals Court recently extended Fourth Amendment protections to emails – yet another adaptation of the Fourth Amendment to our modern age.  In Warshak v. United States, Case No. 06-492 (6th Cir. 2008), the court stated “an Internet subscriber enjoys a reasonable expectation of privacy in the contents of emails that are stored with, or sent or received through, a commercial Internet Service Provider.”.  This ruling came after federal authorities seized emails from a company called Enzyte, who marketed “male enhancement” on national television for a time.

The government alleged that the company based its advertisements on fake studies and pocketed hundreds of millions of dollars.  A jury ultimately agreed, but emails that were seized from the company without a warrant were presented in the trial over the defendants’s objections.  The appellate court reversed the trial court’s ruling on the emails, holding that a commercial email provider is akin to the post office in that it handles electronic communication – sometimes very sensitive communication – with an expectation of privacy.

In the case at issue, the government seized over 27,000 emails from the Internet Service Provider.  It is worth noting that the court’s ruling does not preclude the government from obtaining a warrant to seize emails, just like any other evidence.  However, the extension of the warrant requirement to electronic communications is just another step in the evolution of the Fourth Amendment, one that will hopefully prevent unreasonable government intrusions to your privacy.

If you are being charged with a crime, don’t face it alone.  Visit my website at www.shafercriminallaw.com or call me at (904)350-9333 for a free consultation.

“Frivolous” Appeals

The District Court of Appeals have recently been punishing prison inmates who file what the court deems “frivolous appeals.”  By finding that an inmate’s appeal is frivolous, the Court can direct the Department of Corrections to punish the inmates by revoking their gain time, or credit time, for good behavior.

While I am a bit surprised that the Court would punish inmates for requesting appellate review of their cases, I cannot say that I do not understand the Court’s decision.  Appeals are often highly technical and delve into minute issues that the layman will undoubtedly have difficulty litigating on his own.  It takes years of legal training and actively practicing law to become competent to litigate an appeal.

When anyone, inmate or otherwise, attempts to handle their own appeal, they run the risk of misstating the law, running afoul of strict schedules, or violating Florida’s complex Rules of Appellate Procedure.  You may have a constitutional right to represent yourself, but that doesn’t mean it’s always a good idea.

Appeals are very important, especially after a trial or hearing on a motion.  While I have no doubt that most judges attempt do their best to follow the law, sometimes mistakes get made.  When this happens, your only remedy is an appeal to a higher court.  The higher court can review the law and the evidence and may even reverse the lower court’s decision.  At my firm we handle appeals on the Circuit Court, District Court, and Supreme Court levels.  Without an experienced attorney to litigate your appeal, you may face the appellate court dubbing your appeal “frivolous” and sanctioning you.

It may sound extreme, but recently it has been happening more and more.  If you are considering an appeal, don’t face it alone.  Visit my website at www.shafercriminallaw.com or call me at (904)350-9333 for a free consultation.

~Robert Shafer

Prior False Allegations in Sex Crime Cases

There has been a long-standing conflict among Florida courts that the Fourth District Court of Appeals recently weighed in on.  In Harvey v. State, Case No. 4D08-3607 (decided September 22, 2010), the Fourth District held that when an alleged victim of sexual assault testifies at trial, the fact that she had previously falsely accused someone of sexual assault cannot be used to contradict her accusations.  This ruling is a disappointing blow to the individual liberties of criminal defendants.

Without the ability to prove or disprove the veracity of an alleged victim’s character, juries are at a loss to fulfill their primary function: finders of fact.  When the State’s case is based on nothing more than an alleged victim’s accusations, why shouldn’t the accused be allowed to delve into other instances of dishonesty in similar situations?

In Jaggers v. State, (decided in 1988) the Second District Court of Appeals held the opposite, that a prior false accusation of sexual abuse or assault can come in when the sole evidence against the accused is the alleged victim’s testimony.  The First District Court of Appeals later held in Pantoja v. State (decided in 2008) that such statements are not admissible in any circumstances.  And now, the Fourth District has come down on the side of the First.

Florida’s evidence code forbids use of “prior bad acts” as impeachment of a witness.  Generally speaking, when a witness is on the stand, an attorney cannot claim that the witness is being dishonest because the witness has lied about something else in the past or behaved in an immoral manner.  However, the facts in Harvey, Pantoja, and Jaggers did not deal with general accusations of misconduct, but rather very specific acts of dishonest: prior accusations of sexual abuse that the victim later admitted were false.

How is this not relevant to a trial where the sole evidence against the accused is the victim’s accusations?  This principle creates the potential for the greatest evil that criminal justice system can commit: a conviction of those not guilty.

The Florida Supreme Court has recently granted review of the cases dealing with this principle.  I can only hope that the Justices recognize the danger created by not allowing an alleged victim’s prior similar false accusations to be admitted to a jury.

If you are facing allegations of sexual abuse, don’t face it alone.  Visit my website at www.shafercriminallaw.com or call me at (904)350-9333 for a free consultation.

~Robert Shafer

Juvenile Sexual Offenders in Florida

The First District Court of Appeals recently made a landmark decision that greatly effects the juvenile criminal justice system in Florida.  In K.J.F. v. State, Case No. 1D10-1539 (decided September 30, 2010) the Court held that, unlike adults, juveniles who are found to have committed certain sexual offenses only have to register as sex offenders (a life-long designation) if the Court adjudicates them delinquent and determines them to be a threat to society.  This appeal was litigated by one of my associates, Cory Simmons.

This decision is important because it underlines the need for rehabilitation in Florida’s juvenile justice system.  By allowing circuit court judges to distinguish between dangerous offenders that should be placed in a public registry and offenders that may be rehabilitated with the proper treatment, the Court has ensured that children who are at low-risk to re-offend are not labeled as sex offenders and exiled from society at a young age.

I applaud the First District Court of Appeals for this decision.  It underlines the need for psychological treatment to address potentially serious problems in our society.  After all, the goal of the juvenile justice system is rehabilitation, not punishment.

If you or a loved one are facing involvement in the juvenile justice system, don’t face it alone.  Visit my website at www.shafercriminallaw.com or call me at (904)350-9333 for a free consultation.

~Robert Shafer

Dropped or Abandonded, Poisonous Fruit Still Inadmissible.

The Second District Court of Appeals recently distinguished a legal principle that has been used to support police power for decades.  According to the United States Supreme Court, a person does not have a right to privacy in objects they abandon.  However, law enforcement has often claimed abandonment of items that were involuntarily dropped or separated from a person, thus giving them a basis to search, pillage, and arrest.

In T.T.N. v. State (Case No. 2D09-856, Decided July 23, 2010), a case haling from the St. Petersburg area, the Second DCA reversed a trial judge’s decision to allow evidence to be admitted that was obtained after it was dropped by a juvenile who had been ordered to put his hands up but was not under arrest or being detained as part of an investigation.  The officers involved were investigating a group of juveniles who were in a vehicle that had recently fled from the police.  The fleeing driver had already been found and arrested.  The officers approached a home where several of the juveniles were standing near the vehicle that previously fled – one of them ran around the side of the house, the others ran inside.  Despite the previous fleeing investigation being over and despite there being no evidence that these children had committed any sort of new crime, the officers followed them.  After chasing the juvenile who ran around the side of the house, the officers ordered him to put his hands up and a small tube fell from his hands.  Cocaine was inside.

The officers attempted to claim that the juvenile abandoned the tube.  Judge Raymond Gross agreed with the officers.  However, the Second DCA noted that abandonment must be an intentional act, and that mere separation of a person from an object does not mean that a person has given up all privacy interests they may have in that object.  More importantly, the DCA explained that an officer’s misconduct in seizing the juvenile without any reason to believe he had committed a crime effected the analysis greatly: if the officers had not illegally detained the juvenile, the tube would have never been “dropped” or “abandoned” and the evidence found would not have later been used against him.

If you are facing prosecution for a drug crime, don’t face it alone.  Visit my website at www.shafercriminallaw.com or call me at (904)350-9333 for a free consultation.

~Robert Shafer

Resisting Arrest

Can you physically resist an unlawful arrest?  Florida’s courts have inconsistently answered this question for the last few years – and a recent opinion by the Fifth District Court of Appeals has only added to the quagmire of confusion surrounding this issue.

The issue, put simply, is this: If an officer tells you to put your hands behind your back to be handcuffed, you are obligated by law to put your hands behind your back.  If you refuse to do so, then you could be criminally prosecuted for resisting an officer without violence. However, what happens when the officer has no right to detain you?  What happens when there is no reason for the officer’s command other than petty bullying or harassment?  What recourse do you have when there is no law that supports the officer’s arrest other than the simple notion that you are compelled to obey his or her authority?

In response to this scenario, the Florida Supreme Court decided in 1994 that you can only be prosecuted for resisting an arrest if the arrest is a lawful one.  What does that mean?  It means, essentially, that you can resist an unlawful arrest.  This ruling has been stretched and interpreted by various courts of appeals.  Some courts have interpreted it to mean that a judge must first declare the arrest unlawful before this defense can be argued to a jury.  This makes no sense, since once an arrest is declared unlawful, the judge is usually obligated to suppress any evidence obtained afterwards, thus causing the State to drop the charges.  Others have decided that the burden is on the State to prove both that the arrest was lawful and that the Defendant was resisting.  This also presents problems, since it usually requires juries to answer legal questions, such as, “what is a lawful arrest?” with little or no guidance from the judge.  The Fifth District Court of Appeals has added yet another limitation onto what was, in 1994, a rather clear-cut doctrine.

Under Brown v. State, the defense must dispute the facts that are being used to support an officer’s reason for an arrest or detention in order to ask the jury to find that the officer had no right to detain someone.  Instead of simply remaining silent and requiring the State to prove their case beyond all reasonable doubt, the Fifth District has decided to require a defendant to protect their own constitutional rights in a court of law, lest they be ignored.  According to the Fifth District, a defendant must dispute the facts that the officer claims justified the arrest or detention or the jury does not hear the critical instruction that one can legally resist an unlawful arrest.

Let me be clear: I am not giving legal advice.  I am not telling anyone to refuse any commands by any officers at any given time.  In fact, refusing a command by an officer is usually a very effective way to find yourself beaten, electrocuted by a tazer, or even shot.  Getting an attitude with an officer (especially in North Florida) is almost always met with some sort of physical response.  It’s simply not a safe way to conduct yourself.

However, if you are facing prosecution for the crime of resisting an officer – with or without violence – you may have legal remedies available to you.  An attorney may be able to challenge the officer’s right to detain you, or there may be additional facts that you did not know prior to being detained.  While resisting an officer is one of the most common charges in our criminal justice system, it is also often the most susceptible to a legal challenge, in my experience.

In conclusion, I will simply say that officers do not have the right to detain anyone without, at the very least, reasonable suspicion of criminal activity.  If you resist any unlawful detention, you may have a legal recourse in court.  Sadly, your legal recourse won’t stop the violence that will probably follow your resistance.  And in the end, the best way to avoid a fight is simply not to pick one.  Visit my website at www.shafercriminallaw.com or call me at (904)350-9333 for a free consultation.

~Robert Shafer

With regards to Mr. Mantei’s comment below, I would absolutely agree that resisting an unlawful arrest can only legally be done WITHOUT violence.  The law is very clear that inflicting violence on a law enforcement officer in response to what is perceived as an unlawful arrest is never acceptable.  Ever.  Thank you, Mr. Mantei, for pointing that out.

Standing Your Ground

In Florida, your home is your castle.  The “Stand Your Ground” Law is a relatively new defense under Florida’s criminal statutes.  Several years ago Florida’s Legislature passed a law that changed the way prosecutors and police dealt with the use of deadly force in certain situations.  The law essentially states that if you have a right to be in a place and another person forcibly enters that place or physically attacks you while in that place, you have the right to “meet force with force” if you believe such force is necessary to avoid great bodily harm to yourself or another.

Sounds like common sense, right?  Unfortunately, for years in Florida, innocent homeowners were being prosecuted for inflicting serious, even deadly injuries upon burglars and thieves.  After a prolonged public outcry, the law was finally changed to ensure that people who stood up to criminals would never have to be criminally punished for doing so, as long as they did so reasonably.

Unfortunately, situations in which this defense may apply are not always clear-cut.  Sometimes, police arrest first and ask questions later.  While I respect many law enforcement officers in our community, I also recognize that they are usually not legal scholars that understand the nuances of Florida Law.  Despite the Stand Your Ground Law, you may still face criminal prosecution for defending your car, your home, or your loved ones.

Other times, a use of force may be deemed excessive.  For example, killing someone who is merely trespassing on your property, without displaying any intent to harm anyone, is a prime example of this.  Ongoing feuds with the trespassers, previous threats of violence by them, and acts of harassment can sometimes increase the fear of harm.  As I said, these situations are not always so clear-cut.

When these situations arise, you need an experienced criminal attorney.  As a criminal trial attorney in Jacksonville, Florida, I am no stranger to gun crimes.  When a firearm is involved, prosecutors and police tend to automatically seek prison without stopping to see if there is a valid reason for the use of force. While gun crimes are far too prevalent in North Florida, they are not always attributable to gang violence and drug trade.  Sometimes, a person overreacts to a situation in which they feel threatened.  And sometimes, that overreaction is justifiable.

If you are facing prosecution for a violent crime, don’t face it alone.  Visit my website at www.shafercriminallaw.com or call me at (904)350-9333 for a free consultation.

Regards,

Robert Shafer

Sex Offender/Predator Registration

“Being forced to register as a sex offender is not punishment.  It’s just a way of letting the public know about people convicted of certain crimes. Registration as a sex offender in no way effects a person’s rights.“

That’s the position that the Florida Legislature has taken regarding the harsh, draconian punishment of registration as a sexual offender or predator. It’s a ludicrous position, and I will tell you why.

Being forced to register as a sexual offender twice a year in a database that is searchable by the public is perhaps one of the most humiliating and destabilizing punishments that the judiciary can impose. If an offender fails to register or fails to update any of his contact information, he or she will be prosecuted for a second degree felony that requires mandatory prison time. Does this sound like a harmless sanction?

It is not my position that no one should be forced to register as a sexual offender or a sexual predator. There are many deeply disturbed individuals in our society whose presence should be known and accounted for. Those who target young children, those who have shown violent sexual tendencies, and those who suffer from mental disorders that lead them to target others should be watched very closely by the government. Registration is often an appropriate punishment for these individuals.  However, Florida Law does not consider individual cases: every single person who is convicted, pleads guilty, or pleads nolo contendere to a sex crime must register. .. for the rest of their life.

The first step in using this societal tool in a responsible and accurate manner is recognizing that it is a punishment. The second is recognizing that not everyone accused of a sexual crime should be punished as a chronic offender or predator. I have represented many eighteen year old males who had sex with their sixteen year old girlfriends and were prosecuted for it. These young men should not have to register. I have represented upstanding adults who have been accused of crimes and pled nolo contendere to sex charges because they feared a trial where it would simply be their word against that of a credible, albeit alleged, victim. I have represented people who, in a rare bout of extreme intoxication, went too far with a person they were already romantically involved with. Are these people predators? Do they deserve the lifelong stigma of being searched out on a public database? Do they deserve to be sent to prison for living too close to a school where their child may attend, or for neglecting to give the government their new address?

There is no easy answer to these questions, but I have handled cases where the deciding factor is an experienced attorney who can portray their client as a person, not a monster. If you are facing prosecution for a sex crime, don’t face it alone. Visit my website at www.shafercriminallaw.com or call me at (904)350-9333 for a free consultation.

Sex Crimes

It’s an uncomfortable topic, right? No one really wants to talk about sex crimes. Sure, we’ll watch TV shows that portray vigilant sex crimes detectives solving crimes, or documentaries on serial rapists who are finally brought to justice. In my experience, those melodramas are an instance of art veering away from real life… typically in the name of TV ratings.

Most of the time, sex crimes are based on simple accusations. Forensic science has made significant advancements in technology over the past 30 years. However, unlike burglaries or violent crimes, DNA evidence is rarely a feature in these cases. Unlike drug cases, eyewitness statements are even rarer. Unlike DUIs, to have any sort of video or audio recording is practically unheard of.

So what’s left? Well, that’s what makes these types of crimes so uncomfortable to discuss, both for the victims and the accused. All that’s left is an accusation. In my experience, most sex crimes boil down to a single person pointing the finger at another. That’s why most people are uncomfortable talking about the subject – because it forces them to either believe the accuser or believe the accuser is lying.

Accusations of sexual assault are more common than you might think. Often times daycare workers, familial custodians, or school employees find themselves facing accusations without any proven wrongdoing. What is their recourse in such a situation? Sadly, the mere allegation alone is enough to lose a career, a reputation, and even freedom. The law allows for crimes to be proven beyond a reasonable doubt based on accusations alone – without any forensic evidence or independent testimony.

In an age where popular crime dramas depict advanced scientific techniques that have been practiced for years, one would think that police and prosecutors would have a bit more of an interest in pursuing the forensic side of their cases. Unfortunately, most police arrest on accusations alone. Many prosecutors take cases to trial hoping that the credibility of the alleged victim alone will be enough to convince a jury to convict, regardless of what DNA evidence might be out there. Often times, they’re right.

The prosecution of sexual crimes needs to change. With the plethora of resources at the government’s disposal, why should there be a single trial without forensic evidence? Why do prosecutors and police continue to take the easy route and just rely on testimony when they should be presenting evidence? Because juries continue to convict.

If jurors will hold law enforcement accountable to the standards dictated by today’s technology, we would see a change. Law enforcement would be forced to use the resources at their disposal. More importantly, the truth would stand a greater chance of coming to light at a trial. Is this not the goal of the criminal justice system?

If you are accused of a sex crime, don’t face it alone. You need an experienced attorney at your side. Visit my website at www.shafercriminallaw.com or call me at (904)350-9333 for a free consultation.

Regards,

Robert Shafer

What to do when you’re served with an injunction

An injunction is Florida’s version of a restraining order. When someone asks a court to issue an injunction keeping you away from them, the Court will immediately grant a “temporary injunction” until there is a full hearing to determine if there should be a permanent one. Temporary injunctions are just as powerful as permanent injunctions, and violating the terms of that injunction can have serious consequences. If you are given an injunction ordering you to have no contact with someone, you may feel hurt, betrayed, angry, worried, or outraged. At this point, you have many legal options: you can consult an attorney to determine if you want to get your own injunction against that person, you can hire an attorney to represent you at the pending injunction hearing, or you can simply agree that a permanent injunction should go in place against you. The one option you absolutely do not have: contact the other person in an attempt to work it out. Emails, text messages, even comments and messages on networking sites like facebook and myspace can amount to a violation of an injunction. Over the past few years, I have seen the law adapt to our recent technological advances, and if you think that an injunction doesn’t forbid these types of contact, you’re wrong. I have seen people go to jail over simple friend requests. However, if you do find yourself in the position of having made some sort of contact despite an injunction, you need representation. There are criminal penalties associated with this type of action, including fines, probation, and even up to a year in jail. The penalties that enforce injunctions are tough, and judges typically do not look kindly upon those who, in their opinion, ignore a lawful order. The injunction process is technical and has very strict legal standards. Whether you’re seeking one against someone, trying to understand why one was issued against you, or simply trying to prevent one from being ordered, it never hurts to have an experienced attorney on your side. Visit my website at www.shafercriminallaw.com or call me at (904)350-9333 for a free consultation.