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

“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

Mere Acquiesence

Law enforcement officers often believe that they have the authority to frisk or pat down just about every civilian they encounter.  As the Fourth District Court of Appeals recently reminded the St. Lucie County’s Sheriff’s Department, they don’t.

Many people often simply just assume that when an officer indicates that he wants to search them, they have to simply allow it.  There is a great deal of confusion on this issue, mainly because of statutes that criminalize the act of “resisting an officer without violence.”  When it is common knowledge that you can be jailed for resisting law enforcement, it makes sense that people would be hesitant about telling an officer “no, you can’t search.”  After all, isn’t that the most simple way to resist?

Contrast this with the constitutionally guaranteed freedom from unreasonable searches and seizures and you get a great deal of public misconception.  People often tell me that they consented to a search of their home, car, or person because they did not believe that they had the right to refuse the request.  This is called “mere acquiescence” to authority and is insufficient to waive your right to live free of governmental intrusion.

Pat downs and frisks that are conducted to check for weapons often lead to the discovery of drugs.  In E.J. v. State, Case No. 4D-0-736, decided August 4, 2010, a juvenile was a passenger in a vehicle that was pulled over.  The driver was asked out of the vehicle and searched.  As an officer approached the juvenile, she immediately got out of the vehicle, put her hands on the hood, and spread her legs in anticipation of being searched just like the driver.  The officer frisked her and found marijuana.  She later challenged the search by claiming she never consented to the search, and by also claiming that she was not even aware that her consent was needed.  The trial court held that her actions gave the officers a reasonable belief that she was consenting to a search.

The Fourth District Court of Appeals reversed, noting that the test for whether or not consent existed is not what the officers believed, but rather whether or not consent was actually given.  In order for consent to be valid it must knowing, intelligent, and voluntary.  In E.J.’s case, there was no evidence to show that any of those requirements were met.

Law enforcement officers deal with potentially dangerous situations every day.  Ensuring people don’t have weapons that could be used to harm either the officers or other civilians is an age-old practice that many officers do automatically.  In this case, their behavior was neither extreme or unusual.  As the court noted in E.J. v. State, a generalized fear for officer safety is most understandable, but does not justify a frisk or search by itself.

If you are facing prosecution for an alleged criminal act, 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

Double Jeopary and Double Dipping

Double Jeopardy: no one can be prosecuted for the same crime twice.  The Fourth District Court of Appeals recently vacated two convictions for the same act.  In the case of Hanfield v. State, Case No. 4D08-4072 (Decided July 28, 2010), the Defendant threatened a motorist with a gun and took his car keys.  The Defendant was unable to start the car because she couldn’t figure out which key was the ignition key.  She later fled on foot without taking any other property.

The prosecutor filed charges of both armed carjacking and armed robbery for this single incident.  Hanfield appealed her conviction for both crimes, claiming that she was being prosecuted twice for the same act.  The prosecution claimed that “this argument has not been preserved, as it was not raised below.”  The Court, however, correctly noted that since Double Jeopardy is a fundamental principle of our criminal justice system, a violation of that principle is a fundamental error that can be addressed at anytime.

Carjacking is the forceful taking of a motor vehicle against the owner’s will.  The statute outlawing this act applies only to the taking of the vehicle and is violated when a person takes the keys to the vehicle by force, but is unable to operate the vehicle itself.  In instances where a robber takes more than just keys, but a wallet or phone as well, then a person may be prosecuted for both carjacking and robbery.  However, “the taking of car keys,” the Court points out, “cannot constitute a separate charge of armed robbery.”

This case is a classic example of prosecutors attempting to obtain as many convictions as they can without regard for the most fundamental tenets of the criminal justice system.  The law exists to protect society from both criminals and law enforcement, since both have proven to be threat to society in ages past.  It is worth noting that, in this case, the prosecution did not even attempt to address the legality of the dual convictions, but simply tried to argue a technicality.  While I can say that I work with many honorable prosecutors in Duval, Clay, Nassau, and St. Johns counties who would never stoop to such arguments, I wish the same were true everywhere in our state.  I applaud the Fourth District for vacating this superfluous conviction.

If you are facing prosecution for an alleged criminal act, 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

A “Consensual Encounter”

Is a person surrounded by police officers asking him questions free to leave?  What if they take his identification?  What if they approached him by blocking him in with a patrol car and shining a light in his face?  What if they asked to search him?

The courts have long struggled with the application of the Fourth Amendment of our U.S. Constitution to the everyday activities of law enforcement officers.  In an attempt at some sort of consistency, the U.S. Supreme Court has laid out three types of encounters with law enforcement: consensual encounters, investigatory detentions, and arrests.  The level of constitutional rights a person has increases with the level of restriction, respectively.

So what type of encounter is described above?  According to a circuit judge in Monroe County, the above-described scenario is simply a consensual encounter from which any reasonable person would feel free to walk away.  This conclusion is contrary to common sense, and the Third District Court of Appeals (thankfully) reversed this judge’s classification of this encounter.

In Hill v. State (Case No. 3D09-1346, decided June 30, 2010) the Third District reversed the trial judge’s ruling: that a reasonable person who is menacingly surrounded by police officers who have taken his identification and have asked to search would feel perfectly comfortable walking away from the officers.  In this case, an anonymous tip told officers that a black man was sitting by a white woman at a particular location and selling drugs.  When the officers arrived, one of them pulled up directly in front of Hill ( black man) and directed his spotlight on him.  Another officer took Hill’s identification to check for outstanding warrants.  Four officers then approached from different directions and boxed him in, asking to search his person.  The police had no other indication that any sort of crime was being committed.

Thankfully, the Third District applied common sense to a real-life situation.  Holding a person’s identification is certainly one way of preventing them from leaving.  The fact that his identification was being held by armed officers who were asking to search increases the restrictiveness of this encounter.  While I am glad to see this simple principle applied, I am dismayed by the myriad of trial courts who do not believe that this is a form of detention.

Police do not always abide by the Fourth Amendment.  The law exists to protect society from both criminals and the police. Consensual encounters with law enforcement can quickly become investigative detentions or arrests.  If the police do not observe your constitutional protections, you may have a legal recourse.

If you are facing prosecution for a crime or are concerned that your rights have been violated, visit my website at www.shafercriminallaw.com or call me at (904)350-9333 for a free consultation.

Expectations of Privacy in Apartments

The Fourth Amendment has long stood for a fairly common-sense principle:  Agents of the government are not supposed to enter or search a place where a person has a reasonable expectation of privacy without a warrant or probable cause to believe that there is some evidence of a crime there.  Although it seems pretty simple, this doctrine has been litigated for years in the nation’s highest courts, usually turning on the interpretation of the phrase “reasonable expectation of privacy.”

Courts have uniformly held that a person certainly has a reasonable expectation of privacy in his home.  The Florida Supreme Court recently addressed a unique situation.  In Caraballo v. State (SC07-1375, decided June 24, 2010), the issue arose as to whether or not an apartment, whose owners were in the process of evicting the tenant, carries the same protections as a regular home.

Caraballo was convicted of murder, kidnapping, rape, and a host of other heinous crimes.  Before trial and while the investigation was ongoing, law enforcement officers entered Caraballo’s apartment with the consent of the apartment owners but not the renting tenant, who happened to be Caraballo.  Typically, this sort of entry is illegal and anything found inside would not be admissible against the tenant.  Inside they found Caraballo and collected several pieces of evidence later used to convict him.  Caraballo also made several incriminating statements.

Even if a tenant is not an owner, the tenant still has a reasonable expectation of privacy in a place that they both rent and reside.  However, in this case, Caraballo had previously failed to pay his rent and the owners had begun eviction proceedings.  In addition, there was evidence that Caraballo knew of the eviction proceedings and had removed most of his personal belongings from the apartment.  Most importantly, he no longer had a key to the apartment and had to borrow one from the apartment’s leasing office before entering.  He told the leasing office that he was simply removing a few remaining articles from the apartment.

The Court held that Caraballo had no reasonable expectation of privacy in an apartment he was being evicted from and had apparently abandoned.  The Court noted the facts that Caraballo had already removed many of his belongings and that he no longer had a key.

While this may seem like a very specific situation, the Court’s holding further defines the perpetually nebulous concept of privacy by applying common sense.  Here’s a lesson one can learn from this ruling:  When you stop paying your rent, you stop becoming a tenant.  When you’re not a tenant, you have no right to challenge a police entry into an apartment.

If you are facing prosecution for 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.

~Robert Shafer

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