The Crime of Eye Contact

Courts have long held that when an individual flees from police presence in a “high crime area,” the police are justified in briefly detaining that individual to check for weapons or contraband.  According to the First District Court of Appeals, one Santa Rosa County judge stretched this doctrine a little too far.

In Hill v. State, Case No.: 1D10-2100 (decided January 24, 2011), Mr. Hill was parked at a closed gas station in an area that had recently suffered a string of burglaries.  A police officer drove by and, upon making eye contact with the officer, Hill got in his car and drove away.  The officer made a u-turn and followed Hill for over a mile; he did not see Hill commit any traffic infractions.  The officer then pulled Hill over anyway, called a canine unit, and searched Hill’s car.  Marijuana and a firearm were found inside.

When Hill moved to suppress the marijuana and firearm because they were obtained through an unreasonable search, the trial court relied on the vague “totality of the circumstances” to uphold the police action and denied Hill’s motion because he appeared to be fleeing from the police in a high crime area.  The First DCA reversed on the following grounds:

“[R]easonable suspicion of criminal activity is not established simply because a defendant leaves the scene when an officer nears.”  The Court further noted that Hill did not drive away in a reckless manner or commit any traffic infractions.  While the “flight in a high crime area” doctrine has been used to justify many warrantless searches, the First DCA has finally put a limit on this broad exception to the warrant requirement.

If law enforcement has violated your constitutional rights, don’t face it alone.  You may be entitled to have key pieces of evidence suppressed, either by a trial court or on appeal.  Visit my website at www.shafercriminallaw.com or call me at (904)350-9333 for a free consultation.

~Robert Shafer

You a Cop? Why the Police can lie to you.

Many people believe that if an undercover police officer is asked if they are a member of law enforcement, that the officer must be truthful.  This is not the case.

The police can lie to you.  They can tell you that they are not cops.  According to federal law, government agents are under no duty to be truthful about their identity in any given circumstance.  This may not seem right, since the average person mistakenly believes that law enforcement officers actually have a duty to avoid doing immoral things, like lying.  They don’t.  It all boils down to a simple, yet hypocritical, doctrine: law enforcement officers are permitted to do immoral things in order to enforce laws.

Here’s a simple example: Here in Jacksonville an elderly man was recently killed by an officer who was recklessly speeding on a congested road.  The reason the officer was speeding?  To catch a window tint violator.  He was breaking the law in order to enforce it, and sadly, an innocent civilian got in the way.

This is most common in undercover cases.  Whether it’s narcotics or prostitution, there are entire units of officers who are paid by the taxpayers to deceive, trick, and entrap the very people they are sworn to serve protect.  And the worst part is, the courts have left you very little recourse in such a situation.  It takes a lawyer with extensive knowledge of Florida’s jurisprudence to litigate these defenses, and it is never, ever easy.

If you are facing criminal prosecution from an undercover sting, 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

Restitution in Florida

In 2005, the Florida Legislature redefined the meaning of the term “restitution” in our state. When the Legislature amended Florida’s Victim Restitution Act in 2005, it broadly expanded what was previously a fairly narrow issue. In days past, a victim of a crime was entitled to things directly caused by a defendant’s crime, i.e., medical bills, damage to property, etc.  Losses such as lost wages and incidental expenses were not included in this statute, and had to be sued for in civil court.

Then the Legislature changed the statute to include losses indirectly cause by a crime.  This vague addition has opened up the criminal justice system to an enormous potential for abuse: a potential that has, on many occasion, been realized.  I see this happen, most often, in cases that involve a pre-existing relationship.  For example: two brothers who have been at odds with each other for years.  They finally get into a physical confrontation that lands one of them in the hospital.  After the injuring brother pleads guilty or is convicted, the victim shows up to court and asks for his medical bills to be paid for, which the judge kindly grants.  Then the victim asks for the wages he has lost because he was later fired from his job.  The reason he was fired?  The victim testifies that it was because he missed so much work while he was in the hospital, but the truth is that he was chronically late.  How much are the lost wages?  The victim claims that he made $25 an hour, but the truth is he only made $17 an hour.  The judge considers this testimony and grants the victim an enormous award for restitution.

Why should this testimony be enough?  Because of Florida’s new restitution statute.  Under the statute, the victim has no burden but merely asserting a number to the Court.  The burden to establish the veracity of these claims is met solely by the victim claiming it is so.  There is no testimony from experts, no discovery entitling the defendant to the victim’s employment or tax records, no meaningful opportunity to rebut these allegations.

Florida’s restitution statute is unfair.  It intrudes into areas that used to be reserved for civil law suits.  In the civil realm, safeguards like discovery production, expert testimony, and jury findings ensure that the number arrived at is a fair one.  Instead, an enraged victim is given the chance to take money from a defendant, with no check on honesty.

This statute needs to change.  Its authority should be restricted to areas easily provable and not commonly subject to dispute, such as medical bills and the cost to repair property.  Until then, there will always be the possibility for injustice in Florida’s criminal justice system.  If you are facing a restitution issue, 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

Victory in DUI trial

Trials are a very important part of representation.  Whether you are facing a misdemeanor DUI or felony drug, weapon, or white collar charges, having the right trial lawyer by your side can be the difference between jail or freedom.

We recently went to trial in a case where our client was charged with Driving Under the Influence.  Without violating the attorney-client privilege, I will only say that at first glance, the charges against my client were serious and there was a lot of evidence against him.  We spent weeks in preparation and sifted through the testimony of every witness, expert, and officer.  The trial lasted nearly seven hours, and after two and a half hours of deliberation, the jury returned a verdict of not guilty on all counts.  My client was not even found guilty of speeding, the reason he was pulled over in the first place.

I say that to only say that when you are charged with a crime, the government will throw everything they have at you.  Even though Florida’s budget is stressed more now than at any point in history, our State Attorney continues to feel the need to exhaust Florida’s resources by taking as many cases to trial as possible. Being a former prosecutor, I know that each trial costs the taxpayers an exorbitant amount of money.  Paying for jurors to be brought in, expert witnesses for the State, courtroom personnel, after-hours staff, even keeping the lights and air conditioning on when jury deliberations go well into the night: all of these things cost you. Greatly.  At my firm, we often try to resolve cases without a trial, in the hope that we can convince a prosecutor to drop charges or a judge to throw out the case.  However, there are times that prosecutors feel the need to make a statement and try even the most frivolous of cases, despite strained budgets.

That’s fine for us, we’ll be ready.  If you are facing a trial in a criminal case, you need an experienced criminal trial attorney at your side.  At my firm, we only do criminal defense.  Visit my website at www.shafercriminallaw.com or call me at (904)350-9333 for a free consultation.

Regards,

Robert Shafer

Contempt

Judges have the unique power to put people in jail for misconduct in courtrooms. It’s called contempt, and without a lawyer you can find yourself facing a judge who is acting as prosecutor, jury, and executioner. As anyone who has been held in contempt can tell you, this is not a good position to be in.

A judge can hold a person in contempt for many things: speaking out of turn in the courtroom, being disrespectful when asked a question, and refusing to comply with a judge’s request. All of these things can lead to open contempt hearings – and all of these things can lead to you being jailed for months at a time.

In Florida, contempt is defined as any refusal to obey a legal order or any conduct which prevents the court from conducting its business. As straightforward as that may sound, it can often be interpreted as punishing outbursts in court after harsh sentences. Many times I have seen it used to punish belligerence from a defendant during a disputed case. In giving the judiciary this power, the legislature’s goal was to give judges absolute authority over their courtrooms. And it worked.

However, people unfamiliar with the criminal justice system, particularly in hotly contested proceedings, can find themselves running afoul of a judge’s idiosyncracies. This is why self-representation is so dangerous. While a person has a constitutional right to represent themselves in court, that same person also has a constitutional right to an attorney.

If you are facing a criminal case, your freedom is at stake – in more ways than you know. The government will have an attorney there, working for the State’s interests. You should have one too. If you need representation in any criminal matter, visit my website at www.shafercriminallaw.com or call me at (904)350-9333 for a free consultation.

Regards,

Robert Shafer

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.

Your Florida Driver’s License

Driving an automobile is a necessity for many people. Gone are the days when one could easily walk or get a cab to their work or school – especially in Jacksonville, Florida. We live in one of the most spread-out communities in the nation, and a result of this sprawling layout is that people need to drive. However, this need is often confronted with the strict regulation of your driver’s license by Florida’s Department of Highway Safety and Motor Vehicles, commonly called the DHSMV.

The DHSMV controls the roads. This agency is responsible for designing and building roads, maintaining them, determining who can drive what on them, and policing them with Florida’s Highway Patrol. The DHSMV is one of the most powerful administrative agencies in the State, with a massive budget and nearly unchecked authority. In my experience, the DHSMV tends to take their role as “King of the Road” very seriously. Though created with the best of intentions, this system can often create some very complex and frustrating barriers to those who are trying to get their driver’s license reinstated.

Your driver’s license can be suspended for a multitude of reasons. Every time you are cited for a moving violation such as speeding or running a red light, the DHSMV can assess points to your license. If you incur twelve or more points within a twelve month period. Your license will be suspended. If you fail to pay court-ordered child support, you license can be suspended. If you are convicted of any crime involving drugs, your license can be suspended. The list goes on and on, from not having the proper automobile insurance to failing to pay simple tickets. The worst part is this: If you are caught driving on a suspended license, you will more than likely be arrested and taken to jail. At this point, people usually pick up the phone and call a lawyer.

Why wait until you are arrested? At my law firm, we address driver’s license issues everyday. Often times people assume that because their license is suspended, they simply have to wait on the suspension to be up before they can drive again. However, many times we can have your old tickets or convictions set aside, or at the very least, prevent new points from going on your license. Sometimes, we can even ensure that your unpaid traffic tickets do not effect your current ability to drive. Dealing with the DHSMV can be a tiring task, so let us do it for you. There is no need to spend money on cabs or walk everywhere you go – if there is a way to make your license valid, we will find it.

If you are dealing with a driver’s license suspension, call us at (904)350-9333 or visit our website at www.shafercriminallaw.com

Regards,

Robert Shafer